Under Virginia law, can a Commonwealth's attorney or assistant Commonwealth's attorney carry a concealed handgun into a restaurant that serves alcohol, drink while doing so, or carry on school grounds?

Plain-English summary

In 2008, the General Assembly amended § 18.2-308 to add subsection (B)(9), creating a statutory exemption for Commonwealth's attorneys and assistant Commonwealth's attorneys from the general prohibition on carrying concealed weapons. Delegate Ware asked the Attorney General to sort out the boundaries of that new exemption: Did it let prosecutors carry into restaurants and clubs that serve alcohol (which would otherwise be prohibited by § 18.2-308(J3))? Could they drink while carrying? Did the exemption reach onto school property (otherwise prohibited by § 18.2-308.1)?

Attorney General William Mims answered yes, yes (subject to the intoxication limit), and yes. Section 18.2-308(B) begins with "[e]xcept as provided in subsection J1, this section shall not apply to" the listed classes. That language exempts the listed persons from all of § 18.2-308's restrictions, including the restaurant/club ban in subsection (J3), and leaves only § 18.2-308(J1) (no carrying "under the influence" of alcohol or drugs in a public place) as a constraint. Section 18.2-308.1(B), the school-property statute, expressly incorporates the § 18.2-308 exemptions mutatis mutandis, so Commonwealth's attorneys can carry on school grounds under state law.

The intoxication question is more interpretive. The 2008 amendments did not separately ban alcohol consumption while carrying. The General Assembly could have written a flat-out ban but chose the phrase "under the influence." The standard for "under the influence" is the same as the criminal-statute standard, which looks to whether the person meets the intoxication standard under § 4.1-100. Whether someone is "under the influence" in any particular case is a factual question for the courts. So prosecutors are not prohibited from drinking while carrying, but they are prohibited from being intoxicated while carrying.

The opinion adds two cautious notes. First, the AG does not address federal law: the federal Gun-Free School Zones Act (18 U.S.C. § 922(q)) is a separate question, and being statutorily exempted from a permit requirement under state law is not the same as having a "license" within the meaning of the federal statute. Second, the AG explicitly says the office does not presume the General Assembly considered all of these scenarios when it enacted the amendment, and the General Assembly may amend the statute to supersede the opinion.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Virginia's firearms statutes have been amended significantly since 2009.

Background and statutory framework

Section 18.2-308 generally prohibits the carrying of concealed weapons in Virginia, with several layers of exceptions. Subsection (A) sets out the general ban. Subsection (B) lists categories of people who are exempt from the prohibition (judges, sheriffs, police officers, retired law enforcement, conservators of the peace, and others). Subsection (B)(9), added by the 2008 amendments (2008 Va. Acts ch. 464), added "Commonwealth's attorneys and assistant Commonwealth's attorneys" to that list.

Two specific subsections create restrictions of their own. Subsection (J1) prohibits "any person permitted to carry a concealed handgun" from being "under the influence of alcohol or illegal drugs while carrying such handgun in a public place." Subsection (J3) prohibits carrying a concealed handgun into a restaurant or club licensed to sell and serve alcoholic beverages, but applies to people carrying by permit, not to those carrying under the (B) exemptions.

Section 18.2-308.1 generally prohibits guns on school property. Subsection (B) incorporates the § 18.2-308 exemptions mutatis mutandis, meaning the same exemptions that lift the concealed weapons prohibition also lift the school-property prohibition.

The opening clause of § 18.2-308(B) is the linchpin: "Except as provided in subsection J1, this section shall not apply to" the listed classes. "This section" refers to § 18.2-308 as a whole, including subsection (J3). That language tells the AG that the (B) exemptions sweep more broadly than the permit-based authorization, which is governed by § 18.2-308(O) and stops short of clearing § 18.2-308(J3) (per prior AG opinions, a permit holder cannot conceal in a restaurant or bar).

What the AG concluded

The 2008 exemption is broad and subject only to § 18.2-308(J1). Section 18.2-308(B)'s opening clause expressly exempts the listed classes from the entire section, except for § 18.2-308(J1). That includes the restaurant/club ban in (J3) and the under-21 limit in (J2) (not at issue here). Statutory text controls.

Commonwealth's attorneys may carry on school property. Section 18.2-308.1(B) incorporates the § 18.2-308 exemptions mutatis mutandis. Because the 2008 amendments added Commonwealth's attorneys to those exemptions, they are also exempted from the school-property prohibition. The Frias case confirmed that this kind of mutual incorporation works.

Prosecutors may consume alcohol while carrying, up to the under-the-influence line. The General Assembly chose the phrase "under the influence" rather than a flat-out drinking ban. Plain-meaning construction respects that choice. Being "under the influence" is a question of fact applying the § 4.1-100 standard.

The opinion does not address federal law. The federal Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2), applies independently. The AG flagged that being statutorily exempt from a state permit requirement is not the same as holding a "license" for federal-statute purposes. Federal compliance is a separate analysis.

The General Assembly can override the opinion. Acting AG Mims included a caveat that he was not presuming the legislature foresaw all the scenarios addressed in the opinion. The legislature can amend the statute to supersede the conclusions.

Common questions

Why did the General Assembly extend a concealed-carry exemption to prosecutors?
The opinion does not explain the legislative motivation. The amendment is typically attributed to concerns about prosecutors who handle dangerous cases (organized crime, violent felonies, gang prosecutions) potentially being targeted by people they have prosecuted.

Does this apply to all assistants, including those who handle only traffic court?
The text of § 18.2-308(B)(9) does not distinguish among assistant Commonwealth's attorneys. The exemption applies to the category, not to the type of work the individual prosecutor does.

What about retired Commonwealth's attorneys?
The opinion does not address retired prosecutors. The statutory text applies to "Commonwealth's attorneys and assistant Commonwealth's attorneys," which on its face means those currently serving. Separate provisions (like § 18.2-308(C) for retired law enforcement) cover retirees in some categories but the 2008 amendment did not extend to retired prosecutors.

Could a Commonwealth's attorney be charged with carrying while intoxicated under § 18.2-308(J1)?
Yes. The under-the-influence restriction applies to all persons carrying, including those carrying under a § 18.2-308(B) exemption. If a prosecutor became intoxicated while carrying in a public place, that would be a separate offense.

Does this apply to other state attorneys, like the Attorney General's lawyers?
No. The 2008 amendment specifically added Commonwealth's attorneys and their assistants, not Attorney General staff. Other categories of state attorneys are not covered by the (B)(9) exemption.

Does this affect the federal Gun-Free School Zones Act?
The AG declined to opine. Federal law has its own list of exceptions (active law enforcement officers, licensed concealed-handgun holders meeting specific requirements), and a Commonwealth's attorney's statutory exemption from a state permit requirement may or may not satisfy the federal "license" standard. A prosecutor relying on this exemption to carry on school grounds should also consult federal law.

Citations

• Va. Code Ann. § 18.2-308 (concealed weapons; (B)(9) exemption)
• Va. Code Ann. § 18.2-308.1 (guns on school property)
• Va. Code Ann. § 4.1-100 (intoxicated standard)
• 2008 Va. Acts ch. 464 (2008 amendments)
• 18 U.S.C. § 922(q)(2) (federal Gun-Free School Zones Act)
• South Hill v. Allen, 177 Va. 154 (1941)
• Frias v. Commonwealth, 34 Va. App. 193 (2000)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-111-Ware.pdf

Original opinion text

COMMONWEALTH OF VIRGINIA
Office of the Attorney General
William C. Mims

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

July 13, 2009

The Honorable R. Lee Ware
Member, House of Delegates
P.O. Box 689
Powhatan, Virginia 23139

Dear Delegate Ware:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You request guidance concerning interpretation of the 2008 amendments to § 18.2-308 that became effective on July 1, 2008 ("2008 Amendments").[1] Specifically, you inquire whether the 2008 Amendments to § 18.2-308(B)(9) authorize Commonwealth's attorneys and assistant Commonwealth's attorneys: (1) to carry concealed handguns in certain restaurants and clubs, generally prohibited by § 18.2-308(J3); (2) to consume alcohol while carrying concealed handguns in such settings; and (3) to possess a handgun on school property as prohibited by § 18.2-308.1.

Response

It is my opinion that the 2008 Amendments clearly exempt Commonwealth's attorneys and assistant Commonwealth's attorneys from the general prohibitions on carrying concealed handguns, subject only to the restrictions in § 18.2-308(J1). Therefore, pursuant to state law such individuals may carry concealed handguns on school property. Further, it is my opinion that the 2008 Amendments do not specifically prohibit such individuals from consuming alcohol while carrying concealed handguns; however, they are restricted by existing statute from being "under the influence" of alcohol or illegal drugs.[2] I also note that Virginia does not rely upon a legislative record to determine legislative intent. I do not presume that the General Assembly specifically considered the issues analyzed in this opinion when it enacted the 2008 Amendments. However, the General Assembly is presumed to be aware of opinions of the Attorney General and is capable of amending the statute to supersede this opinion.[3]

Applicable Law and Discussion

The authority of the General Assembly to prohibit the carrying of concealed handguns and the privilege of granting exceptions to that prohibition have long been recognized.[4] Therefore, the issues you present are limited to interpretation of the 2008 Amendments.

The 2008 Amendments are clear and unambiguous.[5] "[W]here a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction."[6] Section 18.2-308(B) provides that "[e]xcept as provided in subsection J1, this section shall not apply to" the listed classes. (Emphasis added.) Therefore, the only limitations imposed by § 18.2-308 on individuals exempt under § 18.2-308(B) are those contained in § 18.2-308(J1). Use of the phrase, "this section," clearly indicates a legislative intent to exclude from § 18.2-308 the persons within the classes enumerated in § 18.2-308(B). The clear language of § 18.2-308(B)(9) makes the exemption applicable to any Commonwealth's or assistant Commonwealth's attorney.

Accordingly, it is my opinion that a Commonwealth's attorney or assistant Commonwealth's attorney is not prohibited from carrying a concealed handgun into a restaurant or club licensed to sell and serve alcoholic beverages as prohibited by § 18.2-308(J3).[7]

Likewise, Commonwealth's attorneys and assistant Commonwealth's attorneys are exempt from the general prohibitions related to concealed handguns on school property by virtue of § 18.2-308.1.[8] Section 18.2-308.1(B) provides that "[t]he exemptions set out in § 18.2-308 shall apply, mutatis mutandis, to the provisions of this section." (Emphasis added.) Therefore, the exemptions in § 18.2-308(B)-(C) are included by reference as exemptions under § 18.2-308.1.[9] Because the 2008 Amendments, which added § 18.2-308(B)(9), created a new exception for Commonwealth's attorneys, such individuals are not subject to the restrictions generally imposed by § 18.2-308.1.[10]

While specifically exempted from the operation of § 18.2-308(J3), the final question is whether Commonwealth's attorneys may consume alcohol while carrying a concealed handgun. Section 18.2-308(J1) provides that "any person permitted to carry a concealed handgun" is prohibited from being "under the influence of alcohol or illegal drugs while carrying such handgun in a public place." (Emphasis added.) The primary goal in construing a statute is to discern and give effect to the legislative intent.[11] "The ascertainment of legislative intention involves appraisal of the subject matter, purposes, objects and effects of the statute, in addition to its express terms."[12] "The plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction."[13] If the General Assembly had intended to prohibit any consumption of alcohol while carrying a concealed handgun, it could have enacted a complete prohibition against such consumption. Instead, the General Assembly chose to use the phrase, "under the influence."[14] An individual meeting the standards for "intoxicated" pursuant to § 4.1-100 would be prohibited from possessing a firearm, but determination of such a question of fact is for a court to decide.[15]

Conclusion

Accordingly, it is my opinion that the 2008 Amendments clearly exempt Commonwealth's attorneys and assistant Commonwealth's attorneys from the general prohibitions on carrying concealed handguns, subject only to the restrictions in § 18.2-308(J1). Therefore, pursuant to state law such individuals may carry concealed handguns on school property. Further, it is my opinion that the 2008 Amendments do not specifically prohibit such individuals from consuming alcohol while carrying concealed handguns; however, they are restricted by existing statute from being "under the influence" of alcohol or illegal drugs.[16] I also note that Virginia does not rely upon a legislative record to determine legislative intent. I do not presume that the General Assembly specifically considered the issues analyzed in this opinion when it enacted the 2008 Amendments. However, the General Assembly is presumed to be aware of opinions of the Attorney General and is capable of amending the statute to supersede this opinion.[17]

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
1:1089; 1:941/08-111

1. See 2008 Va. Acts ch. 464, available at http://leg1.state.va.us/cgi-bin/legp504.exe?081+ful+CHAP0464+pdf (amending § 18.2-308 related to concealed weapons by adding § 18.2-308(B)(9) and amending § 18.2-308(C)).
2. See VA. CODE ANN. § 18.2-308(J1) (Interim Supp. 2009) (creating rebuttable presumption based on convictions for other offenses to define "under the influence").
3. The General Assembly is presumed to have knowledge of and acquiesce in the Attorney General's interpretation of a statute when no corrective amendments are thereafter enacted. See Lee Gardens Arlington Ltd. P'ship v. Arlington County Bd., 250 Va. 534, 540, 463 S.E.2d 646, 649 (1995); 1996 Op. Va. Att'y Gen.123, 124 n.4.
4. See 1838 Va. Acts ch. 101, at 76-77 (enacting act to prevent carrying of concealed weapon); see also Withers v. Commonwealth, 109 Va. 837, 65 S.E. 16 (1909) (interpreting Code section regarding carrying of concealed weapons by conservators of the peace).
5. See supra note 1.
6. South Hill v. Allen, 177 Va. 154, 165, 12 S.E.2d 770, 774 (1941).
7. See 1998 Op. Att'y Gen. Va. 55 (addressing scope of exemptions within § 18.2-308(B) in context of retired law-enforcement officers and reaching similar conclusion). The exemptions within § 18.2-308(B) provide a broader authority to carry concealed weapons and are subject to fewer restrictions than the ability to carry a concealed handgun by virtue of a permit. Prior opinions of the Attorney General have concluded that concealed carry permits are limited through § 18.2-308(O). See Op. Va. Att'y Gen.: 1995 at 123; id. at 118. Thus, a concealed handgun permit does not authorize a permit holder to conceal a handgun in a restaurant or bar as proscribed by § 18.2-308(J3).
8. See Frias v. Commonwealth, 34 Va. App. 193, 197; 538 S.E.2d 374, 376 (2000). Although the court determined that the individual was not a "conservator of the peace" for purposes of § 18.2-308; "'conservators of the peace' are exempt from the prohibition against carrying a gun on school grounds." Id.
9. See 2000 Op. Va. Att'y Gen. 100, 102 n.6 (defining exemptions incorporated by reference as § 18.308.1(B)).
10. I note that this opinion addresses only state law and does not address whether a Commonwealth's attorney is prohibited by federal law from possessing a loaded firearm on school property. See 18 U.S.C.S. § 922(q)(2) (2005). However, exclusion from the requirement of a permit under state law is not the equivalent of possessing a license under § 922(q)(2)(B)(ii). See § 18.2-308(B)(7)-(8) for examples of exemptions that are deemed equivalent to holding a permit for purposes of federal law and state reciprocity.
11. Vollin v. Arlington Co. Electoral Bd., 216 Va. 674, 678-79, 222 S.E.2d 793, 797 (1976).
12. Id. at 679, 222 S.E.2d at 797.
13. Id.
14. Section 18.2-308(J1).
15. For many years, Attorneys General have concluded that § 2.2-505, the authorizing statute for official opinions of the Attorney General, does not contemplate that such opinions be rendered on matters requiring factual determinations, rather than matters interpreting questions of law. See, e.g., 2003 Op. Va. Att'y Gen. 21, 24 and opinions cited therein.
16. See supra note 2.
17. See supra note 3.