Virginia county prosecutors have publicly refused to enforce SB 749, the state law banning certain modern semiautomatic rifles, arguing the measure conflicts with federal and state constitutions and Supreme Court precedent, and their coordinated stance has turned enforcement into a patchwork tied up further by ongoing lawsuits and injunctions.
A growing number of elected Commonwealth’s Attorneys across Virginia have declared SB 749 unconstitutional and said they will not prosecute violations in their jurisdictions. The law, signed on May 14, immediately drew lawsuits from national gun rights groups and prompted county prosecutors in rural and exurban areas to announce refusals to enforce the statute. Those refusals are consequential because prosecutors decide which criminal charges to pursue locally, so their choices determine whether the law functions on the ground.
Clarke County’s prosecutor began preparing before the bill reached the governor’s desk, reviewing legal arguments and coordinating with local law enforcement about the practical effects of enforcement. That kind of preemptive work led to a joint announcement with the sheriff that they would not pursue cases under SB 749, creating a de facto dead letter for the law in their county. Coordinated positions by both prosecutor and sheriff mean residents there are safe from prosecution under this statute absent intervention from state authorities.
“It didn’t take a crystal ball to see that proposed legislation from Richmond, including SB 749, would like come under constitutional scrutiny. As with any policy and/or practice decision in my office, I started with legal research into the issue. I am not reinventing the wheel here; there is an abundance of well-thought-out briefing of these issues by a number of publicly-available resources.”
Powhatan County’s prosecutor anchored his refusal in the Supreme Court’s Bruen decision, applying that framework to the new ban and finding it lacking historical support. Under Bruen, any modern firearms regulation must align with the nation’s historical tradition of firearms regulation, and Powhatan’s office concluded SB 749 does not meet that standard. The statute targets rifles by listed features rather than proven patterns of criminal misuse, which raises core questions under the Court’s test.
“SB 749 restricts firearms by banning a list of common firearm features. It labels firearms possessing these features as ‘assault firearms.’ It gives no contemplation to how banned weapons are used, if they are in broad circulation, or if they have been a mainstay for sporting or other lawful applications for decades.”
The first prosecutor to break ranks was the Spotsylvania County Commonwealth’s Attorney, who published his declaration the day after the governor signed the bill. His statement appealed to Miller, Heller, and Bruen as the legal foundation for refusing enforcement and affirmed that commonly owned rifles enjoy constitutional protection. That clear, text-based approach has been echoed by others who have read the same Supreme Court opinions federal judges will use when the lawsuits reach court.
“These laws are undoubtedly inconsistent with the historical tradition of Virginia, as articulated by Miller, and are thus unconstitutional under Bruen. Moreover, Heller secures the right of Virginians to keep and bear the most popular rifle in America, an AR-15, for the lawful purpose of readiness for service in the Virginia militia, as the Founders intended.”
By early June, at least fourteen Commonwealth’s Attorneys had formally declared SB 749 unconstitutional and declined to enforce it, and that number has room to grow. Virginia has 120 counties and independent cities with separate elected prosecutors, so the governor cannot simply order prosecutions into action without local cooperation. She can ask the state police to investigate, but without willing prosecutors to file charges, cases stall.
This legal standoff is part of a wider pattern this session: the governor signed a package of gun-related laws, including a universal background check bill and prohibitions on so-called ghost guns, and courts have already issued or reaffirmed injunctions. One background check measure that attempted to direct state police enforcement was met with a court order preventing implementation, illustrating how the judiciary can block attempts to outflank existing injunctions.
Prosecutorial discretion is central to how this plays out in practice. Elected prosecutors weigh statutes against constitutional duties every day when deciding what to charge and what to decline. When a prosecutor determines a law cannot survive constitutional scrutiny, declining to enforce it is a decision tied to their oath to uphold the Constitution rather than a political stunt.
The constitutional standards from Heller and Bruen matter here because they require protection for arms in common use and demand proof that any restriction is consistent with historical traditions of regulation. SB 749 lists cosmetic features to ban and labels affected firearms “assault firearms,” yet the rifles most squarely targeted are widely owned and used for lawful activities like target shooting, home defense, hunting, and competition. That reality undercuts the statute under prevailing Supreme Court tests.
The upcoming weeks and months will see the lawsuits pressed in Virginia courts and likely motions for preliminary injunctions pursued by the plaintiffs. If past patterns hold, judges may enjoin enforcement while the legal challenges proceed, and more prosecutors could join the ranks of those declining to press charges. The clash between an assertive executive agenda and local officials prioritizing constitutional limits is now playing out in courtrooms and county offices across the state.
