Post Revolutionary Legal History


This site is only an information site on the law in Virginia. The following information is not intended as legal advice and should not be relied upon as accurate or current. Consult an Attorney.


The General Court of the Capitol



Pleading the Benefit of Clergy- (Legal Defense)

 

Colonial Court Trials Involving Firearms or "Protective Orders"

1789 -- 14th of Commonwealth

Chapter X.

November 18, 1789

An act concerning homicide by misfortune.

BE it enacted by the General Assembly, That in case  it be found by the country, that any man by misfortune, or in his defence, or in a manner without felony, did kill another, he shall be acquitted.



Post Revolutionary Virginia Law on  Bearing Arms of Deadly Weapons and the Militia


Vi et Armis ( by "Force and Arms")


OCTOBER 1786 -- 11th OF COMMONWEALTH

CHAP. XLIX.


An act forbidding and punishing affrays

BE it enacted by the General Assembly, That no man, great nor small, of what condition soever he be, except the ministers of justice in executing the precepts of the courts of justice, or in executing of their office, and such as be in their company assisting them, be so hardy to come before the justices of any court, or either of their minister of justice, doing their office, with force and arms, on pain, to forfeit their armour to the commonwealth, and their bodies to prison, at the pleasure of a court; nor go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the county, upon pain of being arrested and committed to prison by any justice on his own view, or proof by others, there to abide for so long a time as a jury, to be sworn for that purpose by the said justice, shall direct, and in like manner to forfeit his armour to the commonwealth; but no person shall be imprisoned for such offence by a longer space of time than one month.

 

Note: The above statute is modeled after the Statute of Northampton, 2 Edward 3, c. 3. In Virginia it was also under the title of Affray. It was suspended and then revived in 1792. This law is the forerunner of the modern "Brandishing" law under Va. Code § 18.2-282 and was not a law forbidding the right to keep and to bear arms only that they not to be carried in a manner that would be considered and assault or by "force and Arms". It was stated under the Pleas of the Crown, section 9. "Fifthly, That no wearing of arms is within the meaning of this statute, unless it be accompanied with such circumstances as are apt to terrify the people; from whence it seems clearly to follow, that persons of quality are in no danger of offending against this statute by wearing common weapons, or having their usual number of attendants with them for their ornament or defence, in such places, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicion of an intention to commit any act of violence or disturbance of the peace." 1 Hawkins, A Treatise of the Pleas of the Crown, 488-489 (London 1824). This construction of the statute is repeated by William Waller Hening in his work The New Virginia Justice, Comprising the Office of a Justice of the Peace, 49-51 (Richmond 1810)("Nor unless such wearing be accompanied by such circumstances as are apt to terrify the people; consequently wearing common weapons, or having the usual number of attendants, merely for ornament or defense...will not subject a person to the penalties of the act."). It must also be remembered that this statute came from the common law and the common law in Virginia is subservient to the constraints of the Virginia Bill of Rights, hence St. George Tucker clearly states that being armed in public is protected by the constitution. "The same author observes elsewhere; "the very use of weapons by such an assembly, without the king's license, unless in some lawful and special cases, carries a terror with it, and a presumption of warlike force, etc." The bare circumstance of having arms, therefore, of itself, creates a presumption of warlike force in England, and may be given in evidence there, to prove quo animo the people are assembled. But ought that circumstance of itself, to create any such presumption in America, where the right to bear arms is recognized and secured in the constitution itself? In many parts of the United States, a man no more thinks of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side." 5 Tucker, Blackstone's Commentaries, Note B. Concerning Treason (1803). It would also be impossible for the militia, especially militia patrollers, to protect the Commonwealth if by being armed and riding by day or night, or by being in the fairs or markets was made illegal by this statute when it was their right and their duty to be armed. A similar statute was passed by the General Assembly in 1677 but only forbidding Indians to be armed in markets: "provided alsoe that it shall not be lawfull or permitted any Indian or Indians resorting to or meeting at any those aforesaid marts or ffaires to travell with or carry armes, or appeare there armed, except only the carrying home such armes or ammunition as they shall then and there purchase, and shalbe found registred in the clarkes booke, for which they shall have with them his certificate;"



Benjamin Watkins Leigh's Case, 11 Va. (1 Munf.) 468 (1810). General Attorney's Do Not Have to take Oath Against Dueling in Order to Practice Before the Court

Judge St. George Tucker: "On the point of unconstitutionality, I never have doubted, nor ever shall controvert, the power of this Court to consider and decide whether any act of the Legislature be contrary to the Constitution of the State, or of the United States or otherwise. My reasons and opinions on this subject have long been before the public. I shall not, therefore, repeat them. But on the present occasion, I have not felt, nor do I feel, the smallest doubt of the constitutionality of the act in question ; the object of which appears to me the prevention of a great moral and growing evil ; and the provisions of it, so far as I have had occasion to consider them, well calculated to advance the benefit of society, and suppress the evil. I therefore feel no reason to depart from the opinion which I first delivered, that the oath prescribed by that act must be taken by every gentleman who may wish to practise in this Court, previous to his admission."

Judge Roane: "The phraseology of the 3d section varies somewhat from that of the 2d; but it is only a variation in words, not in substance. The office or place which it contemplates is one which equally requires an "appointment;" and is to be an office or place "under the Commonwealth," and not under an individual Court of Justice. These criteria exclude attorneys at law, as completely as those contained in the former clause under a varied form of expression. In addition to this, the words of the oath itself prescribed by this clause, "during my continuance in office," seem to indicate those public offices which are held by commission, or appointment, and are wont and proper to be resigned; they do not naturally apply to a function which is never resigned or formally given up, which it is the right of one citizen to exercise at the request and for the benefit of another, and in respect to which the regulating hand of the Legislature has only interposed, for the salutary purposes before mentioned....My opinion, therefore, is, that a mere attorney at law, or counsel, is under no obligation to take the oath in question previous to his being admitted to practise in the Courts of this Commonwealth."

Judge Fleming: "The act under consideration being a compulsory law, (however salutary it may be,) imposing on the officers of government an oath unknown to the former laws of the state, or of the United States, although there be no pecuniary penalty inflicted on those who refuse to take the oath therein prescribed, I cannot but consider it as a penal statute, and, as such, must give it a strict interpretation. It appears to me, therefore, that practitioners of the law are not comprehended in the act, under these words; "every person who shall be appointed to any office or place, civil or military, under the Commonwealth, shall, in addition to the oath now prescribed by law, take the following oath," &c. The practice of the law is a profession which every citizen of the State, having complied with certain requisites of the act of 1792, c. 71. may take up, engage in, and exercise, according to his own will and pleasure; and which he may lay down, and resume, as often as to him may seem convenient, without any responsibility for his conduct in so doing. The language or wording of the latter sentence in the oath, evinces, to my mind, that the practitioners of the law were not in the contemplation of the Legislature...I am, therefore, of opinion, that Mr. Leigh may be admitted to practise at this bar, without taking the oath prescribed by the act to suppress duelling."

Mr. Leigh was therefore admitted without taking the oath.

 

John Aldridge v. The Commonwealth, 4 Va. (2 Va. Cas.) 447, 449 (1824).

"Upon the second alleged error, the Court are clearly of opinion, that there is nothing in the Constitution or Bill of Rights, repugnant to the power which the Legislature has exercised in the punishment of this crime. Notwithstanding the general terms used in the Bill of Rights, it is undeniable that it never was contemplated, or considered, to extend to the whole population of the State. Can it be doubted, that it not only was not intended to apply to our slave population, but that the free blacks and mulattoes were also not comprehended in it? The leading and most prominent feature in that paper, is the equality of civil rights and liberty. And yet, nobody has ever questioned the power of the Legislature, to deny to free blacks and mulattoes, one of the first privileges of a citizen; that of voting at elections, although they might in every particular, except color, be in precisely the same condition as those qualified to vote. The numerous restrictions imposed on this class of people in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States, as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms."

 

M'Cune v. The Commonwealth, 41 Va. (2 Rob) 771, 780 (1843).

"It was also proved, that in the neighbourhood where the transaction in question occurred, which is a remote and thinly settled part of the county of Kanawha, on the west fork of the Little Kanawha river, and some sixty miles from the court house of said county, it is the general custom of the inhabitants, when going about the neighborhood from house to house, to travel on foot and to carry their guns with them."

 

United States v. Blakeney, 44 Va. (3 GRATT) 405 (1847) :: Original at Virginia Reports

"We know, as a matter of fact, that at the age of eighteen, a man is capable intellectually and physically of bearing arms; and that it is the military age recognized by the whole legislation of Congress, and of the State of Virginia, and of all the States of the Union, perhaps without exception...The power to enforce service from all capable of bearing arms, is one thing. When it is exercised, all idea of consent or contract is excluded. It is command on one side, unconditional obedience on the other. But that principle has no application to the case of  voluntary enlistments....The power to declare war, which is given to Congress by the Constitution of the United States, in the 8th section of that instrument, I do not think is a sovereign power, according to the definition of sovereign power by the writers on the law of nations. It is a responsible power, which sovereign power is not. According to the theory of the Constitution of the United States, all sovereign power remains with the people....During the war of the revolution, sixteen was the military age. All of that age were enrolled in the militia, subject to be drafted, or called out en masse; as was the case in our last war with England, in some of the lower counties of Virginia. In the war of the revolution, too, commissions were given to many who were not twenty-one years of age. I myself received a commission as first lieutenant in Col. Harrison's regiment of artillery, before I was seventeen years of age, whilst I was at school; and served three years, to the end of the war. The military age absolved all from the control of parents, guardians, or masters, as to military engagements and service, as of higher obligations to the country."



Virginia Constitutional Convention of 1829-1830:

"Sir, the obligations of man in his social state are two-fold; to bear arms, and to pay taxes to the support of Government. The obligation to bear arms, results from the duty which society owes him, to protect his rights of person. The society which protects me, I am bound to protect in return." Judge Upshur of Northampton (October 27, 1829) in Proceedings and Debates of the Virginia State Convention of 1829-1830, 71 (Richmond 1830).

 

Pre-Civil War Laws

1833

Code of Virginia of 1833, Chapter 187- An act to amend and act entitled, "An act reducing into one the several acts concerning slaves, free negroes and mullatoes, and for other purposes"

4. "No free negro or mulatto shall be suffered to keep or carry any firelock of any kind, any military weapon, or any powder or lead; And any free negro or mulatto who shall so offend, shall, on conviction before a justice of the peace, forfeit all such arms and ammunition to the use of the informer; and shall moreover be punished with stripes, at the discretion of the justice, not exceeding thirty-nine lashes. And the proviso to the seventh section of the act, entitled, "an act reducing into one the several acts concerning slaves, free negroes and mulattoes," passed the second day of March, one thousand eight hundred and nineteen, authorizing justices of the peace, in certain cases, to permit slaves to keep and use guns or other weapons, powder and shot; and so much of the eighth section of the said recited act as authorizes the county and corporation courts to grant licenses to free negroes and mulattoes to keep or carry any firelock of any kind, any military weapon, or any powder or lead, shall be, and the same are hereby repealed.(b)."

See: The Nat Turner Rebellion of 1831, and William S. Drewy,The Southampton Insurrection, (Washington 1900).

1860

Derived from an 1847 Law:

Title 55. Chapter 201. Sec. 8.

"If a white person go armed with a deadly or dangerous weapon, without reasonable casue to fear violence to his person, family or property, he may be required to give a recognizance, with the right of appeal, as before provided, and like proceedings shall be had on such appeal." 

 

CONSTITUTION OF THE CONFEDERATE STATES OF AMERICA. Section 9, Subsection 13:

"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."

 

Burroughs v. Peyton, 57 Va. (16 GRATT), 470 (1864). :: Original at Virginia Reports

"It will be observed that a broad distinction is made in the constitution, between the "militia," and the "armies," referred to in it: the powers conferred upon Congress, and denied to the states, in reference to the one, being widely different from the powers conferred and denied in reference to the other. And, indeed, the two words could not properly have been used to convey the same idea. An army is a body of men whose business is war: the militia a body of men composed of citizens occupied ordinarily in the pursuits of civil life, but organized for discipline and drill, and called into the field for temporary military service when the exigencies of the country require it... for the militia can be called out only for the purpose of executing the laws, suppressing insurrections, or repelling invasions...  It is true that the constitution does recognize the militia, and provide for using it, as well as regular armies, in the military service of the country. A well regulated militia has (as is stated in one of the amendments) always been regarded as necessary to the security of a free state. It was therefore proper that provision should be made in the constitution for its organization, and for the authority to be exercised over it by the state governments and Congress respectively. It was not probable that in the exercise of this power to raise armies. Congress would, under ordinary circumstances, materially diminish the number of the militia. But it cannot be true that, with the view of preserving the militia entire, it was intended to deny to Congress the right to take individuals belonging to it for the regular army. This construction would prevent Congress from obtaining from its ranks not only conscripts but volunteers also; and as the militia embraces the whole arms bearing population, it would render it necessary that the army should contain none but foreigners hired for the purpose, and having no interest in common with the people of the country. No one can imagine that such was the intention of the framers of the constitution."

 

Journal of the Confederate Congress, Volume 7, Nov. 8, 1864. p. 261.

"Second. "Until our white population shall prove insufficient for the armies we require and can afford to keep in the field, to employ as a soldier the negro, who has merely been trained to labor, and as a laborer the white man accustomed from his youth to firearms" would neither be wise nor advantageous."

 


Reconstruction Laws

Military Occupation 1867

Act of Congress Mar. 2, 1867, § 6,:


Sec. 6 And Be it Further enacted, That all militia forces now organized or in service in either of the States of Virginia, North Caroliua, South Carolina, Georgia, Florida, Alabama, Louisiana, Mississippi, and Texas, be forthwith disbanded, and that the further organization, arming, or calling into service of the said militia forces, or any part thereof, is hereby prohibited under any circumstances whatever, until the same shall be authorized by Congress.


Occupation Forces Change Virginia's Constitution in Violation of the Bill of Rights


The 1874 Code of Virginia under Chapter 196 reads:
 

Persons armed; Affrays and Threats; Recognized to Keep Peace
8. If a person go armed with a deadly or dangerous weapon, without reasonable cause to fear violence to his person, family or property, he may be required to give recognizance, with the right of appeal as before provided, and like proceedings shall be had on such appeal."

In 1887 this was incorporated as a separate statute Sec. §3919. In 1910 this statute was renamed with a new code citation and would now be found under Chapter 189 Subsection § 4795 "When person going armed required to give recognizance, with right of appeal." This statute remained in force until 1950. When the 1942 Code of Virginia was updated and converted into the 1950 Virginia Code, new chapters were created for the various offenses and those not incorporated into the new code were repealed. Virginia Code Sec § 4795 was not incorporated into the 1950 Code and was thus repealed. Bearing arms or "Open carry" was no longer a state crime however, several localities would enact local ordinances prohibiting the bearing of arms.

 

In 1875 the General Assembly also enacted a law that prohibited the carry of weapons at a place of worship or carry on Sunday.
 

"Approved February 23, 1875
1. Be it enacted by the General Assembly,  It shall not be lawful for any person to carry any gun, pistol, bowie-knife, dagger, or other dangerous weapon, to any place of public worship during the time of holding any meeting for religious worship at such place, or to carry any such weapon on Sunday, at any place other than his own premises, except for good and sufficient cause."

 

The General Assembly reworded and reenacted the statute in 1887 under Offenses Against Morality, Etc. :

Title 52. Sec. 3806. Carrying Dangerous Weapon to place of religious worship , or on Sunday at place other than his own premises, how punished.

If any person carry any gun, pistol, bowie-knife, dagger, or other dangerous weapon, to a place of worship while a meeting of religious purposes is being held at such place, or, without good and sufficient cause therefor, carry an such weapon on a Sunday at any place other than his own premises, he shall be fined not less than twenty dollars. If any offence under this section be committed at a place of religious worship, the offender may be arrested on the order of a conservator of the peace, without a warrant, and held until a warrant can be obtained, but not exceeding three hours. It shall be the duty of every justice, upon his own knowledge, or upon the affidavit of any person, than an offence under this section has been committed, to issue a warrant for the arrest of the offender.


 

Dueling in Virginia


Photograph By the Virginia Department of Historic Resources

The Famous Henry Clay - John Randolph Duel

 

The above historic maker is inaccurate. Although it correctly states that dueling in Virginia was illegal, this statement leads the viewer to think that the duel was fought in Virginia. It was not. This duel was fought in Alexandria (D.C.) or the ceded part of Virginia that formed the District of Columbia. The notes of one of the Seconds (Thomas Hart Benton) stated that he held a sealed letter that was later opened which John Randolph had requested that if he died to be taken to Virginia and not to be buried in Washington. See also Amicus Curiae Brief of Virginia1774.org on the history of Fairfax County and the District of Columbia.

 

The American Code: Code Of Honor; or, Rules For The Government Of Principals And Seconds In Dueling.

Mason - McCarty : Dueling Cousins


The Principals: General Armistead Thomson Mason versus John Mason McCarty.


General Armistead T. Mason: Grandnephew of George Mason of Gunston Hall by George Mason's brother Thomson Mason. Cavalry Officer during the War of 1812, Brigader General of the Virginia Militia, Senator of the United States. He lived at his plantation "Selma" in Leesburg, Virginia. Armistead Mason was a graduate of the College of William and Mary where he was accused of trying to participate in a duel during his attendance at the college in 1806:

"A duel was to have been fought a few days ago between two students, Armistead T. Mason, son of Genl. Stevens T. Mason, decd., and Bartholomew Henley. They were to have fought with two pistols each, ten steps distance, advance and fire when they pleased. Fortunately, it was discovered by the Bishop. They were both young men of undaunted courage." 8 William and Mary College Quarterly Magazine, Glimpses of Old College Life, 220 (Richmond 1900).


John M. McCarty: Grandson of George Mason of Gunston Hall. Son of Sarah Mason and Daniel McCarty who lived at Cedar Grove Plantation across from Gunston Hall at Accotink Bay.


Precipitating Events to the Affair of Honor: Both men were residents of Loudoun County, Virginia. When Armistead Mason was a Senator, he favored the Quakers of Loudoun County and introduced a senate bill that would allow the Quakers to pay $500 dollars in lieu of draft service in the military. For this act of legislation his cousin John McCarty branded him a coward. John McCarty provoked Armistead Mason to a duel which he finally accepted.

The Date, Location, Method and the Result: The Bladensburg Maryland Duelling Grounds served as the location. The weapons chosen were muskets charged with ball to be fired at very close range (The distance varies with numerous accounts, so none are reliable). On Saturday February 6, 1819, the parties shot at each other with Armistead Mason receiving the mortal wound and died that day. His body is buried in the St. James Episcopal church in Leesburg Virginia. See: Benjamin C. Truman, The Field of Honor, 266-267 (New York 1884).


An Act to supress Dueling; Code of Virginia, Chap. 157, 583-585 (1810), Code of Virginia of 1831 Concerning Dueling

Virginia Case Law on Dueling

Royall v. Thomas, 69 Va. (28 Gratt) 130 (1877) :: Original at Virginia Reports

"It is said by a learned author, that in the reign of George the Third about one hundred and seventy duels were fought, of which not less than seventy resulted fatally, but in no instance was a conviction ever obtained when the duel was fairly fought according to the terms of the code of honor. The British parliament passed the most stringent laws on the subject in aid of the common law; but they were wholly ineffectual to arrest the practice, or even to moderate its excesses. The defect was not in the laws, but in the tribunals to administer them. A writer of great distinction (Mr. Starkie), in a report made to parliament on this subject, said: "Experience leads to the conclusion that the practice of dueling is not controllable by merely penal laws." Universal observation confirms the truth of this statement."

See Also: Cullen v. Commonwealth, Va. (24 Gratt), 624 (1873). :: Original at Virginia Reports



Virginia Reports (Case Law)

Virginia Reports 1730- 1740 & 1768 & 1772 by Thomas Jefferson, Jefferson, Wythe, 1 and 2 Washington, Gilmer : 1 & 2 Virginia Reports ::  11,12,13,14 Virginia Reports 1-4 Hen & Mun 1806-1809, ::  5,6,7,8,9 Virginia Reports (1-6 Call) 1797 - 1825 ,:: 15,16,17 Virginia Reports: (1-3 Munford) 1809-1813)., :: 18,19,20 Virginia Reports: (4-6 Munf.) 1814-1820, :: 22,23,24 Virginia Reports (1-3 Rand),1821-1825 ., :: 25,26,27 Virginia Reports (4-6 Rand),1826-1829 .,:: 28, 29, 30, 31 Virginia Reports: (1-4 Leigh) 1829-1834, :: 32, 33, 34, 35 Virginia Reports: (5-8 Leigh) 1834-1837,:: 40, 41 Virginia Reports (1-2 Rob) 1842-1843, :: 42, 43, 44 Virginia Reports (1-3 Gratt.) 1844-1846 , :: 48 - 49 Virginia Reports: (7-8 Grattan) 1850 - 1851. , :: 50, 51 Virginia Reports (9-10 Gratt.) 1852-1854, :: 52-53 Virginia Reports: (11-12 Gratt.) 1854 - 1855 , :: 54,55,56 Virginia Reports: (13-15 Gratt.) 1855 - 1860 , :: 57, 58, 59 Virginia Reports: (16-18 Gratt.) July 1, 1860 - April 1, 1865., :: 60, 61, 62 Virginia Reports: Including Military Court of Appeals (19 - 21 Gratt.) 1868-1872., ::  63, 64 Virginia Reports: (22-23 Gratt.) March 15, 1872 - Nov. 1, 1873 , ::  65, 66 Virginia Reports: (24-25 Gratt.) Nov. 1, 1873 - March 1, 1874 ::  67 Virginia Reports: (26 Gratt.) Years 1875-1876., :: 67, 68 Virginia Reports: (26-27 Gratt.) 1876- 1877., :: 69, 70 Virginia Reports (28-29 Gratt.) 1876 - 1878 , :: 71, 72 Virginia Reports: (30-31 Gratt.) 1878-1879., :: 73, 74 Virginia Reports: (32-33 Gratt.) 1879 - 1880

 

75 Va. (Jan. 1882 to April 1882). :: 77 Va. (Jan. 1883 to Nov. 1883). :: 78 Va. (Nov. 1883 to May 1884). :: 83 Va. (Feb. 1887 to Nov. 1887). :: 88 Va. (June 1891 to June 1892). :: 93 Va. (April 1896 to Nov. 1896). :: 97 Va. (March 1899 to Jan. 1900). :: 100 Va. (Nov. 1901 to Dec. 1902). :: 102 Va. (Nov. 1903 to Sept. 1904). :: 104 Va. (June 1905 to Feb. 1906). :: 105 Va. (Feb. 1906 to Sept. 1906). :: 107 Va. (June 1907 to March 1908). :: 108 Va. (March 1908 to Dec. 1908). :: 109 Va. (Dec. 1908 to Sept. 1909). :: 110 Va. (Sept. 1909 to June 1910). :: 113 Va. (Dec. 1911 to Sept. 1912).:: 115 Va. (June 1913 to March 1914). :: 116 Va. (March 1914 to Jan. 1915). :: 117 Va. (Jan. 1915 to Nov. 1915). :: 118 Va. (Nov. 1915 to June 1916). :: 121 Va. (June 1917 to Sept. 1917). :: 122 Va. (Nov. 1917 to March 1918). :: 123 Va. (June 1918 to Sept. 1918). :: 124 Va. (Nov. 1918 to March 1919). :: 127 Va. (March 1920).:: 130 Va. (June 1921). :: 131 Va. (Sept. 1921 to Nov. 1921). :: 132 Va. (Jan. 1922 to March 1922). ::

See Also: Digest of the Laws of Virginia of a Criminal Nature (1871). , Digest of the Laws of Virginia of a Criminal Nature 2nd Ed. (1878).


The 20th Century Laws

 

 

Attorney General Opinion on Unconcealed Carry in 1917

 

1926 - Pistol and Revolver Tax and Gun Registration

Chap. 158 of Acts 1926 (Entire Text)-- "An Act to impose a license tax on pistols and revolvers; to regulate the sale thereof and of ammunition therefor; and to provide that the proceeds of such tax shall be used for the establishment of a diseased and crippled children's hospital.

Approved March 17, 1926.

1. Be it enacted by the general assembly of Virginia, That it shall be the duty of every person residing in this State and owning a pistol or revolver therein, to pay on or before the first day of January of each year a license tax of one dollar on each pistol or revolver so owned, or in the event that such pistol or revolver shall be acquired by any such person on or after the first day of February, such license tax shall be forthwith paid thereon. "

This law was held to be Unconstitutional in Commonwealth v. O'Neal, 13 Va. Law Register, N.S. (1928)

1945 - Regulation of Dealers of Pistols and Revolvers

§ 2728b. Authority to impose license tax on and to regulate dealers in pistols and revolvers.

1.The governing body of any county may impose a license tax of not more than twenty-five dollars ($25.00) on persons engaged in the business of selling pistols and revolvers to the public.

2. The governing body of any county may further require sellers of pistols and revolvers to furnish the clerk of the circuit court of the county, within ten days of sale of any such weapon, with the name and address of the purchaser, the date of purchase, and the number, make and calibre of the weapon sold. The clerk shall keep a record of the reports.

3.  The governing body may impose penalties for violation thererof by a fine of not exceeding one hundred dollars and imprisonment in jail for not exceeding six months, either or both. (1945, Ex. Sess. 47.)

 

1964- House Joint Resolution No. 21

In 1964, the Virginia General Assembly passed House Joint Resolution  No. 21  that stated  the people have an inalienable right to bear arms for self defense or defense of the state and that the existence of some groups who want to limit these rights is disturbing to the people. That the General Assembly or local governing bodies should not pass laws to interfere with that right.

House Joint Resolution No. 21 - January 1964- General Assembly Not To Interfere with the Right to Bear Arms (HTML)
 
 

House Joint Resolution No. 21 - January 1964- General Assembly Not To Interfere with the Right to Bear Arms (JPG-Image)
 
 

The 1971 Virginia Constitution
 
 

In 1969, a Commission was formed to replace the existing constitution. The Virginia General Assembly accepted but changed the recommendations of the 1969 Virginia Constitutional Commission and this new constitution was sent to the voters in 1970 and was accepted by a state-wide vote. The new constitution went into effect in 1971 and amended the Militia Clause of the Virginia Bill of Rights, Article 1, Section 13 of the previous Virginia Constitution. They added the words, "therefore, the right of the people to keep and bear arms shall not be infringed." This changing of the wording to explicitly establish a right to keep bear arms has not been legally challenged and no known or significant case law exists as to the extent of this right in Virginia.

House Debate on Article I, Section 13 of the Virginia Constitution during the 1969 Special Session

Senate Debate on Article I, Section 13 of the Virginia Constitution during the 1969 Special Session
 
 

"I will explain to you non lawyers the reason.  You know that the original framers of our Constitution, federal and state,  said that until you provide a buffer between the State and the individual, we are not agreeing to the Constitution.  So they said,  "We will provide a Bill of Rights for the people, not the State,  not for the United States-- A Bill of Rights for the people."   - Senator Pearson, Senate Debates on Revising the Virginia Constitution, P. 387, 1969
The 1971 Constitution as Amended and sent to the voters in 1970, passed with a vote of 535,215 YES (72%) to  211,306 NO (28%):
 

Article I, Section 13. Militia; standing armies; military subordinate to civil power.
 

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."

 

1978 Attorney General Opinion on Carrying Unconcealed Pistol on the Person

Op. Va. Att'y Gen. Aug. (1978).

 


1993 Attorney General Opinion : One Handgun a Month Restriction Does Not Violate the Constitution As There is No Individual Right to Keep and Bear Arms

 

Op. Va. Att'y Gen. (1993).

 

 

Historic Case Law From Other states on the Right to Keep and Bear Arms or a Well Regulated Militia

1)  Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 13 Am. Dec. 251 (1822)

"And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise."

 

2)  Nunn v State, 1 Ga, 243 (1846)

"that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed."

 

3) State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840)

4) State v. Morgan, 25 N.C. (3 Ired.) 186 (1842)    "Being his arms for muster, the gun was by law privileged from seizure"

5) People v. Zerillo, 219 Mich. 635, 189 N.W. 927 (1922).  Game Laws may not Be used to Disarm the People


Virginia History on Concealed Carry of Deadly Weapons

The Nat Turner Rebellion of 1831. The Nat Turner slave insurrection may have been the impetus for the first concealed weapon law in Virginia. It was without a doubt the impetus of the passage of An act to amend and act entitled, "An act reducing into one the several acts concerning slaves, free negroes and mullatoes, and for other purposes" in 1833. Dueling had already been outlawed by statute and duels were usually fought over honor and had formal codes of conduct as mentioned above in the section on Dueling. The Duel usually did not happen right after the insult was given, thus this law would generally have no affect on dueling as the 1838 Act requires a person to "habitually or generally" keep or carry a concealed weapon. All firearms at this period had to be concealed at times because of Virginia's climate and the nature of gunpowder. Wet gunpowder does not fire and the militia or militia patrolers and those carrying arms for self-defense would have had to conceal their weapons from time to time.

The following is the Concealed Weapon act of 1838, Chap. 101, (76-77).

The Statute was significantly changed by the Acts of Assembly in 1847-8 Chap. VII, Offences Against the Public Peace (110) : The inclusion of the words "Any free person who shall habitually carry" gives further credibility that fear of another slave uprising with weapons supplied by abolitionists is part the purpose of this law. That fear did not have long to wait when John Brown came to Virginia and tried to arm the slaves at Harpers Ferry in 1859.

"The Nat Turner insurrection brought a movement on the part of the east to secure itself against similar outbreaks...Governor Floyd, who sypathized with the east, attributed the causes of the insurection to the influence of 'unrestricted fanatics' from the neighboring states and the work of the negro preacher. He recommended that the legislature silence the latter, that it enact laws to keep the negro slaves in subordination, and that measures be taken for the removal of the free people of color from the state." Charles Henry Ambler, Sectionalism in Virginia from 1776 to 1861, 188 (1910).


The phraseology of this statute is important. Habitual concealed carry within the state of Virginia was unlawful, period. There are no exceptions to police, sheriffs, or conservators of the peace and especially not to private citizens.

See: Hicks v. The Commonwealth, 48 Va. (7 Gratt.) 598 (1850) (Constable charged and convicted of this statute.).


By 1874 the words "any free person " had been removed:

 

"Carrying Concealed Weapons

7. If a person habitually carry about his person, hid from common observation, any pistol, dirk, Bowie knife, or any weapon of the like kind, he shall be fined fifty dollars, and imprisoned for not more than twelve months in the county or corporation* jail. The informer shall have half of such fine.

* The words "or corporation", inserted"

The 1887 Code of Virginia amended the previous code and individual exceptions are added.
 

Sec 3780. Carrying Concealed Weapons, how punished. Forfeiture and sale of weapons. If any person carry about his person, hid from common observation, any pistol, dirk, bowie-knife, razor, slung-shot, or any weapon of the like kind, he shall be fined not less than twenty nor more than one hundred dollars, and such pistol, dirk, bowie-knife, razor, slung-shot, or any weapon of the like kind, shall be forfeited to the commonwealth and may be seized by an officer as forfeited; and upon the conviction of the offender the same shall be sold and the proceeds accounted for and paid over as provided in section twenty-one hundred and ninety. Provided, that this section shall not apply to any police officer, town or city sergeant, constable, sheriff, conservator of the peace, or collecting officer, while in the discharge of his official duty."

The state of Virginia through its general laws in 1887 enumerated those people who may carry concealed without fear of punishment. Now officers of the state or local governing body were exempted. Private citizens will not be added until 1896.

Approved March 4,1896.

1. Be it enacted by the general assembly of Virginia, That section thirty-seven hundred and eighty of the code be amended and re-enacted so as to read as follows:

§3780. Carrying concealed weapons; how punished; forfeiture and sale of weapons.—If any person carry about his person, hid from common observation, any pistol, dirk, bowie-knife, razor, slung-shot or any weapon of like kind, he shall be fined not less than twenty dollars nor more than one hundred dollars, or be committed to jail not more than thirty days, or both in the discretion of the court or jury trying the case, and such pistol, dirk, bowie-knife, razor, slung-shot, or any weapon of like kind shall be forfeited to the commonwealth and may be seized by an officer as forfeited. Upon conviction of the offender, the same shall be sold by the officer and the proceeds accounted for and paid over as provided in section twenty-one hundred and ninety; provided that this section shall not apply to any police officer, town or city sergeant, constable, sheriff, conservator of the peace, or collecting officer while in the discharge of his official duty; provided the county judge of any county in term time, and the hustings judge of any husting court, in term time, upon a written application and satisfactory proof of the good character and necessity of the applicant to carry concealed weapon may grant such permission for one year; the order making same shall be entered in the order-book of such court.

2. This act shall be in force from its passage.

 

Other states had established case law on concealed carry before Virginia's Wither's Case, especially in Georgia. "The same court some years later drew a distinction between "bearing arms" and "carrying weapons". The former, "bearing arms" refers to the constitutional right to own and posses conferred upon the individual. The latter is the state granted privilege of concealing a weapon on the person. 76

76 Hill v State, 53 Ga, 472, 475 (1874)" , William and Mary Law Review, The Right to Bear Arms, 1960, Vol. 2:381, 398
 
 

Important Historic Court Cases on Concealed Carry in Virginia

1) The Sutherland's Case (1909)

2) The Withers Case (1909)

3) Schaaf v. Commonwealth (1979)

See Also:  Marks v. United States, 430 U.S. 188 (1977).   "[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, 10, of the Constitution forbids. . . . If a state legislature is barred by the Ex Post Facto Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction." Id., at 353-35"

1995 AG Opinion on Concealed Carry

 

Op. Va. Att’y. Gen. 118, 119, (1995) , Carrying Concealed in a Restaurant With an ABC License is a Class 1 Misdemeanor etc.

 

Shall Issue

Virginia became a shall issue concealed handgun permit state in 1995 meaning that the court must issue the permit and the previous necessity to show a good cause for having a permit was removed. In order to become a shall issue state, a political compromise was made and permit holders were forbidden to carry a concealed handgun in a restaurant that has an ABC license for on-premises consumption of alcohol.
 
 


Firearm Preemption in Virginia

In 1988 the Virginia Supreme court ruled in Stallings v. Wall, 235 Va. 313 (1988) that localities had the right to regulate firearms. " We hold, therefore, that the City was authorized to enact Section 38-6 under the general grant of police powers contained in Code § 15.1-389.  Accordingly, we affirm the judgment of the trial court."

After the Circuit Court had originally ruled in Statlings v. Wall, 4 Va. Cir. 298 (1985), the  Virginia Attorney General issued an opinion that the Circuit Court was wrong. See: Op. Va. Att'y Gen. Nov. 1986. The 1987 Virginia General Assembly respected the Opinion of the Attorney General and passed the first state firearm preemption law which is now cited as Va Code §15.2-915.
 
See: Winchester v. Redmond, 93 , Va. 711 (1896) First Use of Dillon's Rule

 
1 The Law of Municipal Corporations: By John F. Dillon (1873).

2 The Law of Municipal Corporations: By John F. Dillon (1873).

 

See Also: Prendergast v. Park Authority, 227 Va. 190 Park Authority is Under the Control of Local Governments Which Created Them

See Also:  Tracey Finnell, et al v. Robert J. O'Neill 1998; Fairfax Supervisor trying to ban permit holders in Government Buildings by Procedural Memorandum 01-01 in defiance of  §15.2-915.

See Also: Hanbury v. Commonwealth, 203 Va. 182, 186, Citing 168 Ohio State at 389-90, 154 N.E.2d at 919: " If by ordinance a municipality can make the felony of carrying concealed weapons in the city a misdemeanor, what is there to prevent it from treating armed robbery, arson, rape, burglary, grand larceny or even murder in the same way, and finally dispose of such offenses in the Municipal Court."

See Also: Tidewater Homebuilders v. City of Va. Beach 241 Va. 114,119 (1991) : "Actions undertaken in the exercise of the police power must be reasonable and cannot unduly restrict citizens' constitutional rights." Quoting Assaid v. Roanoake, 179 Va. 47, 18 S.E.2d 287 (1942)


Important Historic Court Cases on Self-Defense in Virginia

1)  Stoneman v. Commonwealth, (1874)

2)  Parrish v. Commonwealth, (1884)

3)  Montgomery v. Commonwealth, (1901)

4)  Fortune v. Commonwealth, (1922)

5)  Dodson v. Commonwealth, (1933)

6)  Commonwealth v. Sands, (2001)
 
 
 

Other States Significant Case Law on the Right to Self-Defense

 

Antonio Feliciano v. 7 - Eleven, Inc. WVA (2001) - Termination From a Job for Exercising the Right of Self-defense Violates West Virginia's Public Policy


Other Legal Documents of the Commonwealth of Virginia


Commonwealth of Virginia Constitutional Debates and Conventions


1) Journal, Acts and Proceedings, of a General Convention of the Commonwealth of Virginia Assembled in Richmond: (1829)

2) Proceedings and Debates of the Virginia State Convention of 1829-1830, To Which are Subjoined, The New Constitution of Virginia and the Votes of the People

3) The Debates and Proceedings of the Constitutional Convention of the State of Virginia: Vol. I (1867).

4) Journal of the Constitutional Convention of the State of Virginia (1901): Vol. I., Vol. II.

5) Constitution of Virginia, An Annotated Edition, Reprint of Previous Constitutions of Virginia of 1776, 1830, 1851,1864, 1867 (1901).

6) The Constitution of the State of Virginia (1902).

7) A History of Virginia Conventions (1902).


Code of Virgnia

1) The Code of Virginia (1803).

2) The Revised Code of the Laws of Virginia (1819): Vol 1 , Vol. II

3) The Code of Virginia (1833).

4) The Code of Virginia (1860).

5) The Code of Virginia (1874).

6) The Code of Virginia (1904).