Would a Virginia law requiring a license to buy a firearm, or a ban on AR-15s and standard-capacity magazines, violate the Second Amendment?
Plain-English summary
In response to a request from Delegate Michael Webert, Attorney General Jason Miyares concluded that two specific gun-control proposals would violate the federal and Virginia constitutional rights to keep and bear arms:
- A requirement that someone obtain a state license before buying a firearm, and
- A ban on commonly-owned firearms (such as the AR-15) and their components and accessories (such as standard-capacity magazines, grips, muzzle devices, and stocks).
The opinion applies the framework from New York State Rifle & Pistol Ass'n v. Bruen (2022), which asks whether a regulation has a "distinctly similar" historical analogue from the founding era. Miyares argues that neither a general purchase-licensing regime nor a ban on commonly-used arms has such a historical match, so both would be unconstitutional. The opinion places special weight on Article I, Section 13 of the Virginia Constitution, which protects the right to keep and bear arms in language that goes beyond the Second Amendment by also referring to "the body of the people, trained to arms" as the proper defense of a free state.
This is an advisory opinion, not a court ruling. The AG cannot strike down legislation. But the opinion telegraphs how Miyares would defend, or decline to defend, gun-control bills if the General Assembly enacts them.
What this means for you
If you are a Virginia legislator weighing a gun bill
The AG's office has signaled that it views permit-to-purchase laws and bans on AR-15-class rifles or standard-capacity magazines as facially unconstitutional under both Bruen and Article I, Section 13. That has practical consequences if such a bill becomes law: in litigation, the AG would normally defend Virginia statutes, and here the AG has publicly staked out a position adverse to that defense. You should expect this opinion to be cited in any future challenge.
If your bill targets narrower conduct, such as disarming someone subject to a domestic violence protective order, the analysis differs. United States v. Rahimi (2024) upheld that kind of targeted disarmament for individuals who pose a clear threat of physical violence. The opinion distinguishes between broad licensing regimes and narrow, threat-based restrictions.
If you own or want to buy an AR-15 or a standard-capacity magazine in Virginia
This opinion is the AG's view, not a court ruling. Virginia has no statewide ban on AR-15s or standard-capacity magazines as of the date of this opinion, and any future ban would face challenge under both this opinion's reasoning and pending federal litigation. Cases like Bianchi v. Brown and Snope v. Brown are working through the federal courts on whether Maryland's assault-weapons ban survives Bruen. Until those cases resolve, the constitutional status of state assault-weapons bans remains contested.
If you are a gun owner relying on this opinion to justify a particular purchase or transfer, do not. AG opinions are persuasive authority, not binding law. Federal background-check requirements still apply, as do existing Virginia restrictions (felons in possession, prohibited persons, age limits).
If you are a federally licensed firearm dealer in Virginia
Nothing in this opinion changes your existing federal compliance obligations. ATF rules, the Form 4473 process, and NICS background checks continue to govern day-to-day sales. The opinion is forward-looking: it expresses the AG's view about what kinds of new state laws would be unconstitutional, not what current law requires of you.
If you are a local police chief or sheriff
The opinion does not alter your enforcement responsibilities under existing Virginia law. It addresses hypothetical future legislation. If your locality has a longstanding practice of refusing to register or issue permits the legislature has not yet authorized, that practice is governed by state statute, not this opinion.
Common questions
Q: Is it now legal to buy an AR-15 in Virginia?
A: AR-15s and similar rifles are already legal to purchase in Virginia for adults who can pass a federal background check. This opinion does not change that. It addresses whether a future ban would be constitutional, and concludes such a ban would not be.
Q: Does this opinion strike down any existing Virginia law?
A: No. AG opinions cannot strike down statutes. They are advisory. Only courts can invalidate laws.
Q: What is the Bruen test the opinion relies on?
A: Under New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), once the Second Amendment's text covers the conduct at issue, the government must show the regulation is "consistent with the Nation's historical tradition of firearm regulation," with a "distinctly similar" historical analogue. The AG argues there is no such analogue for either a permit-to-purchase regime or a ban on commonly-used weapons.
Q: Does Article I, Section 13 of the Virginia Constitution provide any independent protection?
A: The opinion argues yes. The Virginia provision adds language about "the body of the people, trained to arms" being the "proper, natural, and safe defense of a free state." Miyares argues that this language requires protection of arms suitable for that defensive purpose, even if the federal Second Amendment somehow did not. Virginia courts have not yet ruled directly on whether Article I, Section 13 provides protection broader than the Second Amendment, though DiGiacinto v. Rector & Visitors of George Mason Univ. called the two co-extensive on the facts of that case.
Q: Could Virginia ever require a license to purchase a firearm?
A: The AG's position is no. He distinguishes a permit-to-carry-in-public regime (which Bruen upheld in "shall-issue" form) from a permit-to-purchase regime, calling the latter a "far more burdensome" restriction without historical support. Bruen itself cautioned that "any permitting scheme can be put toward abusive ends," and the AG reads that as foreclosing broad purchase-licensing.
Q: What about magazine size limits?
A: The opinion treats magazines as "arms" within the meaning of the Second Amendment, citing Association of New Jersey Rifle & Pistol Clubs (3d Cir. 2018) and Delaware State Sportsmen's Ass'n (D. Del. 2023). Because magazines holding more than ten rounds are "in common use" (numbering "over one hundred million" by some estimates), the AG argues bans on them are unconstitutional. Federal circuits remain split on this question.
Q: Are felons-in-possession laws or domestic-violence-restraining-order disarmament laws affected?
A: No. The opinion expressly preserves Rahimi's rule that "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed." Targeted, threat-based disarmament remains constitutional under existing law.
Background and statutory framework
The opinion was requested under Va. Code Ann. § 2.2-505, which lets members of the General Assembly request advisory opinions on constitutional and statutory questions. Delegate Webert asked whether two hypothetical gun-control measures, a licensure requirement to purchase firearms and a ban on commonly-used firearms with related accessories and components, would survive the Second Amendment and Article I, Section 13.
The Second Amendment protects "an individual right to keep and bear arms for self-defense" (Heller), is "fully applicable to the States" through the Fourteenth Amendment (McDonald), and is "not a second-class right" (McDonald). After Bruen, when the Second Amendment's text covers the conduct, the government must point to a "distinctly similar" historical analogue from the founding era, and the analogue must match the modern regulation closely. Rahimi clarified that the historical match need not be identical, but cannot extend the regulation beyond what was done at the founding.
Article I, Section 13 of the Virginia Constitution echoes the Second Amendment, then adds language that "the body of the people, trained to arms, is the proper, natural, and safe defense of a free state." Virginia courts have so far treated Section 13 as co-extensive with the Second Amendment for the issues actually presented, but neither DiGiacinto nor Ginevan squarely addressed whether Section 13 reaches further than the federal provision.
The opinion catalogs founding-era and 19th-century firearm regulations, noting that "very few" historical licensing requirements "applied to all guns, all people, or all places, much less all three" (citing Ortega v. Grisham, 10th Cir. 2025). It also marshals Supreme Court statements on the AR-15 specifically, including dicta from Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos (2025) describing AR-15s as "widely legal and owned by many ordinary citizens," and a statement from Justice Kavanaugh respecting the denial of certiorari in Snope v. Brown noting that the rifle is legal in 41 of 50 states.
Citations and references
Constitutional provisions:
- U.S. Const. amend. II
- Va. Const. art. I, § 13
Virginia statutes:
- Va. Code Ann. § 2.2-505 (Official advisory opinions)
- Va. Code Ann. § 44-1 (Composition of militia)
- Va. Code Ann. § 44-4 (Classes of militia)
Key cases:
- District of Columbia v. Heller, 554 U.S. 570 (2008)
- McDonald v. City of Chicago, 561 U.S. 742 (2010)
- New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1 (2022)
- United States v. Rahimi, 602 U.S. 680 (2024)
- Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, 605 U.S. 280 (2025)
- Bianchi v. Brown, 111 F.4th 438 (4th Cir. 2024)
- Reese v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 127 F.4th 583 (5th Cir. 2025)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2026/26-001-Webert-issued.pdf
Original opinion text
COMMONWEALTH of VIRGINIA
Office of the Attorney General
Jason S. Miyares
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
January 16, 2026
Attorney General
The Honorable Michael J. Webert
Virginia House of Delegates
General Assembly Building, Room 714
201 North 9th Street
Richmond, Virginia 23219
Dear Delegate Webert:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issue Presented
You ask whether the Second Amendment to the United States Constitution and Article I, Section 13 of the Constitution of Virginia prohibit (1) a licensure requirement to purchase a firearm and (2) a ban of commonly used firearms and related accessories and components.
Response
It is my opinion that each of these measures would violate the right of Virginians to keep and bear arms as enshrined in the Second Amendment to the United States Constitution and Article I, Section 13 of the Constitution of Virginia because there is no history or tradition of these sorts of regulations in our nation.
Applicable Law and Discussion
The Second Amendment 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." The Supreme Court of the United States has repeatedly explained that the Second Amendment, fully applicable to the States through the Fourteenth Amendment, protects "an individual right to keep and bear arms for self-defense," which is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees." Further, that right protects Americans' ability to keep and bear arms that are "in common use," including for self-defense "outside the home." Article I, Section 13 of the Constitution of Virginia likewise provides that "the right of the people to keep and bear arms shall not be infringed" and adds that "the body of the people, trained to arms, is the proper, natural, and safe defense of a free state."
To justify any restriction on the fundamental rights protected by the Second Amendment, the government must show the restriction does not contradict "the Second Amendment's unqualified command." Thus, "[w]hen the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." A proponent of an arms regulation must "demonstrat[e]" that the regulation "is consistent with the Nation's historical tradition of firearm regulation" before "a court [may] conclude" that the regulation is permissible. Finally, the historical analogue must clearly match the regulation being defended: "[e]ven when a law regulates arms-bearing for a permissible reason, ... it may not be compatible with the right if it does so to an extent beyond what was done at the founding." If a regulation's proponent cannot point to a "distinctly similar" historical analogue, then the challenged regulation "is inconsistent with the Second Amendment."
Because history supports neither a licensure requirement to purchase a firearm nor a ban of commonly used firearms and related accessories and components, such measures violate the constitutional rights of Virginians.
I. Law-abiding Virginians may not be subjected to a licensure requirement to purchase firearms.
The Second Amendment's right to keep and bear arms covers the right to purchase arms. A legislature may not, "under the pretence of regulating," enact legislation that seeks, in its effect, "a destruction of [that] right." Nor may a legislature raise barriers aimed at limiting the exercise of a constitutional right, like "impos[ing] a charge for the enjoyment of a right granted by the Federal Constitution."
As explained in Heller and reiterated in Bruen, "when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct." Individuals may forfeit their right to keep and bear arms only in limited circumstances that have historical analogues at the founding. For example, both at the founding and today, "[w]hen an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed."
The historical record demonstrates that the founding generation was acutely aware of officials using pretextual methods to disarm the populace and ratified the Second Amendment to prevent similar abridgements of the right to bear arms in the United States. St. George Tucker, for example, noted that "[i]n England, the people have been disarmed, generally, under the specious pretext of preserving the game." And the Commonwealth demanded that only persons facing insidious discrimination as a result of slavery need a license to carry arms. Even free Black Virginians were prohibited from "keep[ing] or carry[ing] any fire-lock of any kind, any military weapon, or any powder or lead, without first obtaining a license from the court of the county or corporation in which he resides, which license may, at any time, be withdrawn by an order of such court."
Although the Supreme Court in Bruen approved of "shall-issue" licensing requirements for public carry, under which authorities "must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements," a licensing requirement to purchase firearms is a far more burdensome restriction than a simple license to carry in public. "[V]ery few" historical licensing restrictions "applied to all guns, all people, or all places, much less all three." Indeed, the Court in Bruen noted that "any permitting scheme can be put toward abusive ends" and therefore did not "rule out" that a licensure requirement might, in effect, substantially infringe on "the right to public carry."
It is my opinion that a licensure requirement to purchase firearms is unconstitutional because it would substantially interfere with the rights of Virginians to keep and bear arms enshrined in the Second Amendment and Article I, Section 13 of the Constitution of Virginia.
II. Because only "dangerous and unusual weapons" may be banned, weapons and accessories to those weapons "in common use" are constitutionally protected.
The Second Amendment ensures that citizens may keep and bear arms "in common use." In keeping with the nation's historical regulation of weapons, the Second Amendment permits banning only "dangerous and unusual weapons." By the plain meaning of the terms, those categories are mutually exclusive: a weapon cannot be both "common" and "unusual." That some weapons might be more modern than others is irrelevant because "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."
AR-15 rifles, for instance, "are both widely legal and owned by many ordinary citizens." Indeed, "[t]he AR-15 is the most popular rifle in the country." Americans own "20 to 30 million AR-15s ... [a]nd AR-15s are legal in 41 of the 50 States, meaning that the States ... that prohibit AR-15s are something of an outlier." Approximately 2.8 million of those rifles entered the market in 2020 alone, comprising around 20% of all firearms sold that year. "For context, this means that there are more AR-style rifles in the civilian market than there are Ford F-Series pickup trucks on the road, the most popular truck in America." Those weapons therefore are in common use and cannot be banned.
The same constitutional protection extends to firearms accessories and components such as magazines of certain capacities, grips, muzzle devices, and stocks. "The 18th-century meaning [of 'arms'] is no different from the meaning today"; the definition includes "[w]eapons of offence, or armour of defence." Magazines are particularly inseparable from and essential to the function of the majority of modern firearms, which are magazine-fed. And so-called "large capacity magazines" are "in common use." In fact, "in the realm of firearms," magazines holding more than ten rounds "are possibly the most commonly owned thing in America," numbering "over one hundred million." In particular, handguns are commonly produced with factory magazine sizes of more than 15 rounds, and rifles with magazine sizes of 30 rounds. Because these types of arms are "in common use," a regulation banning them "has no historical pedigree and it is arbitrary and capricious[:] [i]t is extreme." Moreover, removing or restricting access to magazines or other important pieces of firearms would render them useless for "immediate self-defense," which is "the core lawful purpose" of the Second Amendment.
Finally, even if the Second Amendment did not extend protection to these types of weapons, the Constitution of Virginia does. Article I, Section 13 of the Constitution of Virginia repeats the Second Amendment's admonition that "the right of the people to keep and bear arms shall not be infringed" and adds that "the body of the people, trained to arms, is the proper, natural, and safe defense of a free state." Virginia's courts have not yet had the opportunity to analyze the effect of this additional language in Section 13, but every part of an enactment "is presumed to have some effect and no part will be considered meaningless unless absolutely necessary." This additional clause emphasizing the importance of a population "trained to arms" for the "defense of ... [the] state" makes clear that arms sufficient for that purpose fall under the Constitution of Virginia's protection.
The historical record further supports that the Constitution of Virginia, even if not the Second Amendment, protects such arms. At the founding, citizens called for service in the militia "were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." For example, a 1661 act required that "every man able to bear arms have in his house a fixed gun, two pound of powder and eight pound of shot at least, which are to be provided by every man for his family." Citizens were, in fact, expected to have such weapons or else face a fine. In 1784, the first full year of peace after the Revolution, the General Assembly mandated that "all free male persons between the ages of eighteen and fifty," with certain exemptions, were to be considered enrolled in the militia and were expected to provide themselves with weapons: regular militiamen were to procure "a good clean musket ... three feet eight inches long in the barrel, with a good bayonet," county officers were required to equip themselves "with a sword and espontoon," and citizens near the Blue Ridge could "have good rifles with proper accouterments in lieu" of muskets. If citizens did not procure arms for themselves, the local court was directed to purchase arms for them "out of the money arising from delinquents" if they were unarmed by reason of poverty. The historical tradition of Virginia's militia continues on to the present day.
For the above reasons, it is my opinion that the Second Amendment to the United States Constitution and Article I, Section 13 of the Constitution of Virginia protect the right of Virginians to keep and bear so-called "assault weapons" and other arms in common use for self-defense, as well as common accessories and components to those weapons.
Conclusion
As experience has demonstrated, even the most draconian government regulations will not prevent individuals bent on destruction from obtaining and using firearms for nefarious purposes, and an unarmed, law-abiding populace is helpless if law enforcement is slow to respond. Fortunately for Virginians, the United States Constitution and the Constitution of Virginia enshrine Virginians' rights to defend themselves, their families, and their fellow citizens. It is my opinion that, in addition to putting Virginians in danger, a licensure requirement to purchase firearms and a ban on commonly used firearms, accessories, and components would violate the Second Amendment to the United States Constitution and Article I, Section 13 of the Constitution of Virginia.
With kindest regards, I am
Very truly yours,
Jason S. Miyares
Attorney General