Written By Trey McAdams L’27
I. Introduction
It is no secret that Americans today are more politically polarized than previous generations.[1] In recent years, issues such as immigration, inflation, and healthcare have risen to the forefront of the public consciousness.[2] While some of the most pressing issues come and go, one has remained for decades: gun violence. This issue hits especially close to home in Virginia. On April 16th, 2007, a gunman entered the Virginia Tech campus armed with two semi-automatic pistols, one of which was equipped with a high-capacity magazine.[3] By the time the mass shooting was over, 32 people were shot and killed, and 17 others were wounded.[4] In February of this year, a mass shooting in the Shockoe Bottom neighborhood of Richmond resulted in two deaths and seven others wounded.[5] Between 2014 and 2023, the Commonwealth’s overall gun death rate increased by 34%.[6] The list goes on.
This problem is a uniquely American one.[7] The United States ranks at the 93rd percentile for overall firearm mortality, 92nd percentile for children and teens, and 96th percentile for women.[8] Approximately one in two Americans views gun violence as a major problem.[9] While some potential solutions, such as preventing those with mental illnesses from purchasing guns or raising the age requirement to purchase guns from 18 to 21 years old, are broadly supported, we remain deeply divided on other policy proposals.[10] Following Virginia’s 2025 General Election,[11] the General Assembly has passed a host of gun-control measures.[12] As a result, the debate over how to curtail gun violence has once again taken center stage.
Virginia’s Proposals
Through the use of their new legislative supermajority, Virginia Democrats passed over twenty gun control measures without the need for Republican votes.[13] These measures range widely in purpose and scope. Many bills seek to restrict the types of firearms individuals can purchase. For example, one of the more hotly contested bills, HB217/SB749, would ban “assault weapons” and put limitations on magazine capacities.[14] Another, HB1525/SB643, raises the age to purchase handguns and assault firearms from 18 to 21.[15] Two bills, HB93/SB38 and HB19/SB160, specifically target domestic abusers.[16]
Not all of these bills focus on individuals themselves or the types of firearms they may carry. Others, such as HB871/SB348, focus on the storage of firearms. This bill would require firearms to be stored securely in homes where minors or prohibited persons are present.[17] Outside of the home, HB1524/SB727 would prohibit individuals from carrying assault firearms in public areas.[18] Finally, HB21/SB27 targets gun manufacturers themselves by establishing standards of conduct for the gun industry and providing individuals affected by gun violence a means of bringing civil claims against them.[19]
Of course, none of these bills have been signed into law. Because each of these bills was passed in the final weeks of the General Assembly’s session, Governor Abigail Spanberger has thirty days to sign them into law.[20] During this period, she may sign any of these bills into law.[21] Alternatively, she may choose to veto all or parts of these bills; she may also send bills back with amendments of her own.[22] In these scenarios, the General Assembly would be forced to either override the Governor’s veto with a two-thirds majority in each house, pass the Governor’s version of the bills through a new majority vote, or do nothing and allow the bill to die.[23] If Governor Spanberger chooses not to take any action on a particular bill by the end of the thirty-day period, it will become law.
In short, there are no guarantees that any of these bills will ultimately become laws. However, this has not dissuaded members of the public and special interest groups from speaking out against them.[24] Should any of these bills materialize into law, there is a significant likelihood that they will face Second Amendment challenges.[25] Like the debate over how to address gun violence, legal challenges to gun control measures are nothing new. Yet, the legal framework for how courts evaluate these challenges has shifted dramatically over the past two decades.
II. Evolution of the Second Amendment
Until relatively recently, the Second Amendment as we know it did not exist. For roughly seven decades, the Second Amendment remained in a state of irrelevance alongside the Third Amendment.[26] In the first major Second Amendment case, United States v Miller, the Supreme Court held that the Second Amendment protects “the right to keep and bear arms” only in the context of “the preservation or efficiency of a well regulated militia.”[27] This interpretation, later termed the “collectivist view,” afforded the government broad discretion in limiting the possession and use of firearms. For example, in Miller, the Court upheld the National Firearms Act, which prohibited possession of sawed-off shotguns or machine guns.[28] There, the Court reasoned that these types of weapons lacked any “reasonable relationship to the preservation or efficiency of a well regulated militia” and therefore lacked protection under the Second Amendment.[29] This approach to gun rights cases persisted well past the 1930s. For decades, major gun control legislation, such as the 1994 Federal Assault Weapons Ban, went unchallenged on Second Amendment grounds.[30] It would not be until 2008 that the Second Amendment got a new day in Court.
District of Columbia v. Heller
It would be an understatement to say that the Court’s decision in District of Columbia v. Heller altered the way that we approach cases involving the Second Amendment. In a 5-4 decision, the Court abandoned the collectivist view of the Second Amendment that had been in place for nearly seventy years. Instead, the Court found both the structure of the Amendment and its history “guarantee the individual right to possess and carry weapons in case of confrontation.”[31]
The original question in Heller was whether a set of District of Columbia gun control laws was constitutional.[32] Through a combination of “may issue” permits, trigger locks, and absolute prohibitions, these laws effectively prohibited the use of any handgun for self-defense within the home.[33] Because these restrictions acted as a wholesale prohibition of the individual right to keep and bear arms within the confines of one’s home for self-defense, they were impermissible under the Second Amendment.[34] However, Justice Scalia also maintained that the Court’s ruling should not be read as invalidating other federal gun control laws.[35]
In sum, Justice Scalia dedicated the bulk of his opinion to justifying the Court’s embrace of the individual rights reading of the Second Amendment. After reframing the scope of the Amendment, he concluded that the District of Columbia’s laws, which were draconian compared to other federal and state restrictions,[36] fell outside the scope of permissible restrictions.[37] However, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.”[38] Therefore, the question of how limited the individual right to keep and bear arms could be was left to the lower courts to answer.
New York Rifle & Pistol Association v. Bruen
Two years after Heller, the Court incorporated the Second Amendment against the States.[39] Like the restrictions in Heller, the law at issue in McDonald effectively barred private individuals from possessing a handgun. Invoking the core holding of Heller, the Court struck it down.[40] While McDonald was significant in that it formally incorporated the Second Amendment against the States, it did little to expand on Heller and provide additional guidance to lower courts. Courts were largely left to their own devices in formulating an appropriate test.
The Courts of Appeals ultimately coalesced around a single, two-step test.[41] Generally speaking, this approach mirrored the type of means-end scrutiny applied in other areas of constitutional law, such as the First Amendment. The level of review courts applied varied based on “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”[42] Laws burdening conduct falling outside the scope of the Second Amendment, as originally understood at the Founding, were afforded rational basis review and likely permissible.[43] In contrast, laws burdening conduct that was not categorically unprotected received heightened scrutiny.[44] The exact level of scrutiny, intermediate or strict, was determined based on “how close the law comes to the core of the Second Amendment right and the severity of the law’s burden on that right.”[45] Under this framework, circuit courts upheld numerous gun control measures while simultaneously striking down those that imposed too great a burden on the individual right to bear arms.[46] While the means-end framework seemingly worked well across each circuit after Heller, the Supreme Court ultimately rejected it.
In 2022, the Court issued its first gun rights case post-Heller, New York Rifle & Pistol Association v. Bruen. In Bruen, petitioners challenged the constitutionality of New York’s handgun licensing regime.[47] Writing for the majority, Justice Clarence Thomas rejected the means-end scrutiny approach that had been adopted across the circuits and used by the Second Circuit to uphold New York’s licensing regime.[48] Instead, Thomas introduced a new “history and tradition” test. Under this new test, the “government must [now] affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.”[49] Naturally, this begged the question, how does the government do this? Like Justice Scalia in Heller, Thomas provided both answers and non-answers.
This new form of analogical reasoning “is neither a regulatory straightjacket nor a regulatory blank check.”[50] On one hand, it “requires only that the government identify a well-established and representative historical analogue, not a historical twin.”[51] On the other, “courts should not ‘uphold every modern law that remotely resembles a historical analogue,’ because doing so ‘risk[s] endorsing outliers that our ancestors would never have accepted.’”[52] How closely, then, must a modern law resemble its historical counterpart? Justice Thomas did not say. Similarly, the question of what history the government could look to was only partially answered. The majority opinion suggested that Founding Era history was most persuasive, but left the door open to whether Reconstruction Era history was also relevant.
Needless to say, this new approach to Second Amendment jurisprudence sounded an alarm across gun control advocacy groups.[53] By restricting federal and state legislatures to the tools of the past, their ability to meaningfully regulate firearms was in jeopardy. Other Justices, such as Justice Breyer, accused the majority of tasking courts and legislatures with finding a needle in a haystack without providing real direction on how to do so.[54]
United States v. Rahimi
Two years later, the Court returned to the question of Second Amendment analysis. In United States v. Rahimi, the petitioner challenged his indictment under “a federal statute prohibit[ing] an individual subject to a domestic violence restraining order from possessing a firearm if that order includes a finding that he ‘represents a credible threat to the physical safety of [an] intimate partner,’ or a child of the partner or individual.”[55] Following the Fifth Circuit’s conclusion that the statute was unconstitutional under the Second Amendment, the Supreme Court reversed.
Writing for the majority, Chief Justice Roberts applied Bruen’s history and tradition test and concluded that Section 922(g)(8) was permissible under the Second Amendment.[56] To the relief of gun control advocates,[57] as well as some of the Court’s liberal justices,[58] meeting the burden of the history and tradition test was not as difficult as initially thought. Drawing from Heller, the Chief Justice explained that restricting modern regulations to the scope of those from 1791 would “be as mistaken as applying the protections of the right only to muskets and sabers.”[59] While the “appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin our regulatory tradition,” it does not require locating “a law trapped in amber.”[60] Instead, “[w]hy and how the regulation burdens the right are central to this inquiry.”[61] In other words, the proper analysis focuses on why the regulation is in place and what mechanisms it uses to achieve its stated purpose.
Applying these standards, the Chief Justice identified two historical analogues that were close enough to § 922(g)(8).[62] The two types of laws, surety laws and going armed laws, varied in period and scope.[63] However, both shared a common “why” and “how”: they were intended to disarm potentially dangerous individuals, and they did so using procedural safeguards.[64] The Chief Justice explained that “Section 922(g)(8) is by no means identical to these founding era regimes, but it does not need to be.”[65]
Rahimi by no means offered the level of clarity that governments and lower courts were hoping for. The fact that five other justices elected to write separate concurrences makes this clear. Moreover, Justice Thomas, who authored the opinion creating the test only two years prior, dissented. In his view, the majority applied a watered-down version of the history and tradition test that was far too lenient.[66] Finally, and likely to the frustration of many lower courts, the Chief Justice concluded by acknowledging that “[i]n Heller, McDonald, and Bruen, th[e] Court did not undertake an exhaustive historical analysis … of the full scope of the Second Amendment. Nor do[es it] do so today.”[67] Rather, the Court “concludes only [that] [a]n individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” In other words, the Chief Justice recognized that the state of Second Amendment jurisprudence is unclear, but the majority declined to offer total clarity.
III. Moving Forward
It would be reasonable for gun control advocates in Virginia to remain skeptical about the fate of the recently passed bills. Rahimi marked a step back from the most extreme application of Bruen’s history and tradition test, but it by no means signaled a green light for states to return to a pre-Heller world. Rather, Rahimi offered some level of clarity to Bruen’s test by focusing on the “why” and “how” of historical analogues.
Gun control opponents should not rest easy either. In the two years since, circuit courts have creatively applied this test to make it more practical.[68] Here in the Fourth Circuit, the Court has found numerous ways to skirt the more burdensome aspects of Bruen’s history and tradition test.[69] In doing so, it has routinely upheld gun control laws in other states.[70] Many of these statutes mirror those passed by the Virginia General Assembly.[71]
The Constitution of Virginia will likely not be of any additional use to future challengers. Like forty-three other states,[72] the right to keep and bear arms is enshrined in Virginia’s state constitution.[73] However, the Supreme Court of Virginia has repeatedly held that this right mirrors its federal equivalent in the Bill of Rights.[74] Regardless of which constitution one invokes, the test courts use will be the same.
In short, Virginia is poised to implement a sweeping set of gun control laws this year. The ensuing debate is nothing new to American politics, but the lens through which courts will analyze these measures is. Only time will tell how many remain once the dust settles.
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Photo citation: Markus Schmidt, House Democrats pass sweeping gun control package over GOP objections, Virginia Mercury (Feb. 6, 2026 at 3:28 PM ET) https://virginiamercury.com/2026/02/05/house-democrats-pass-sweeping-gun-control-package-over-gop-objections/.
[1] See Megan Brenan, U.S. Political Parties Historically Polarized Ideologically, GALLUP (Jan. 16, 2025), https://news.gallup.com/poll/655190/political-parties-historically-polarized-ideologically.aspx.
[2] See Top problems facing the U.S., Pew Research Center (May 23, 2024), https://www.pewresearch.org/politics/2024/05/23/top-problems-facing-the-u-s/.
[3] See 18 Years After Mass Shooting at Virginia Tech, Moms Demand Action and Students Demand Action Urge Action on Gun Safety to Honor Victims and Survivors, Everytown for Gun Safety (Apr. 15, 2025), https://www.everytown.org/press/18-years-after-mass-shooting-at-virginia-tech-moms-demand-action-and-students-demand-action-urge-action-on-gun-safety-to-honor-victims-and-survivors/
[4] Id.
[5] See Taylor Bryan, Police: Deadly mass shooting in Shockoe Bottom started with an argument, WWBT (Feb. 21, 2026 at 6:55 AM ET), https://www.12onyourside.com/2026/02/21/2-dead-after-multiple-people-shot-shockoe-bottom/.
[6] See State Data: Virginia, Johns Hopkins Bloomberg Sch. of Pub. Health, https://publichealth.jhu.edu/center-for-gun-violence-solutions/data/state-gun-violence-data/virginia.
[7] See Statistics, Brady, https://www.bradyunited.org/resources/statistics.
[8] See Evan D. Gumas, et al., Comparing Deaths from Gun Violence in the U.S. with Other Countries, The Commonwealth Fund (Oct. 30, 2024), https://www.commonwealthfund.org/publications/2024/oct/comparing-deaths-gun-violence-us-other-countries.
[9] See Katherine Schaeffer, Key facts about Americans and guns, Pew Rsch. Ctr. (July 24, 2024), https://www.pewresearch.org/short-reads/2024/07/24/key-facts-about-americans-and-guns/.
[10] Id.
[11] See Sean McGoey, Data: Analyzing Virginia’s 2025 general election results, Va. Pub. Media (Nov. 20, 2025 at 5:43 PM ET), https://www.vpm.org/elections/2025-11-20/virginia-election-data-2025-spanberger-hashmi-cole-orrock-spotsylvania.
[12] See Markus Schmidt, House Democrats pass sweeping gun control package over GOP objections, Va. Mercury (Feb. 5, 2026 at 3:28 PM ET), https://virginiamercury.com/2026/02/05/house-democrats-pass-sweeping-gun-control-package-over-gop-objections/.
[13] See Virginia Makes History as General Assembly Sends Landmark Slate of Gun Safety Bills to Governor Spanberger’s Desk, Everytown for Gun Safety (Mar. 16, 2026), https://www.everytown.org/press/virginia-makes-history-as-general-assembly-sends-landmark-slate-of-gun-safety-bills-to-governor-spanbergers-desk/.
[14] H.B. 217, 2025 Gen. Assemb., Reg. Sess. (Va. 2026); S.B. 749, 2025 Gen. Assemb., Reg. Sess. (Va. 2025).
[15] H.B. 1525, 2025 Gen. Assemb., Reg. Sess. (Va. 2026); S.B. 643, 2025 Gen. Assemb., Reg. Sess. (Va. 2025).
[16] See H.B. 193, 2025 Gen. Assemb., Reg. Sess. (Va. 2026) and S.B. 38, 2025 Gen. Assemb., Reg. Sess. (Va. 2025) which protects domestic violence survivors by establishing a clear process for the removal of firearms from individuals subject to protective orders. H.B. 19, 2025 Gen. Assemb., Reg. Sess. (Va. 2026) and S.B. 160, 2025 Gen. Assemb., Reg. Sess. (Va. 2025) close the “Intimate Partner Loophole” by strengthening prohibitions on gun possession for abusers convicted of misdemeanor domestic violence crimes.
[17] H.B. 871, 2025 Gen. Assemb., Reg. Sess. (Va. 2026); S.B. 348, 2025 Gen. Assemb., Reg. Sess. (Va. 2025).
[18] H.B. 1524, 2025 Gen. Assemb., Reg. Sess. (Va. 2026); S.B. 727, 2025 Gen. Assemb., Reg. Sess. (Va. 2025).
[19] H.B. 21, 2025 Gen. Assemb., Reg. Sess. (Va. 2026); S.B. 27, 2025 Gen. Assemb., Reg. Sess. (Va. 2025).
[20] See Va. Const., art. V, § 6.
[21] Id.
[22] Id.
[23] Id.
[24] See e.g., Virginia Lawmakers Want to Punish Crime Victims and Exempt Themselves from Gun Control, Nat’l Rifle Ass’n Inst. for Legislative Action (Mar. 23, 2026), https://www.nraila.org/articles/20260323/virginia-lawmakers-want-to-punish-crime-victims-and-exempt-themselves-from-gun-control; Henry Graff, Hundreds turn out for gun rights rally in downtown Richmond, WWBT (Mar. 14, 2026 at 3:48 ET), https://www.12onyourside.com/2026/03/14/hundreds-turn-out-gun-rights-rally-downtown-richmond/.
[25] See, e.g., John Commerford, The fight is still on in Virginia for gun rights, Fairfax Cnty. Times (Mar. 6, 2026), https://www.fairfaxtimes.com/articles/the-fight-is-still-on-in-virginia-for-gun-rights/article_d263eb7f-dad7-401a-86a1-a93250dc7144.html.
[26] See Akhil Reed Amar, The Bill of Rights 42-63 (1999) (discussing the two in tandem as the “Military Amendments”).
[27] U.S. v. Miller, 307 U.S. 174, 178 (1936).
[28] Id.
[29] Id.
[30] See Ron Elving, The Nashville school shooting highlights the partisan divide over gun legislation, Nat’l Pub. Radio (Apr. 1, 2023 at 501 A.M. ET), https://www.npr.org/2023/04/01/1167467835/school-shooting-assault-weapons-ban-history.
[31] District of Columbia v. Heller, 554 U.S. 570, 592 (2008).
[32] Id. at 574-76.
[33] Id. at 628.
[34] Id. at 636.
[35] See id. at 626-27 (“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”).
[36] See Sunstein, supra note 31 at 263.
[37] Heller, 554 U.S. at 635.
[38] Id. at 626.
[39] See McDonald v. City of Chicago, Ill., 561 U.S. 742, 750 (2010)
[40] Id. at 791 (“In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense.”).
[41] See Ass’n of N. J. Rifle & Pistol Clubs, Inc. v. Attorney General N. J., 910 F.3d 106, 117 (3rd Cir. 2018); accord, Worman v. Healey, 922 F.3d 26, 33, 36–39 (1st Cir. 2019); Libertarian Party of Erie Cty. v. Cuomo, 970 F.3d 106, 127–128 (2nd Cir. 2020); Harley v. Wilkinson, 988 F.3d 766, 769 (4th Cir. 2021); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 194–195 (5th Cir. 2012); United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019); Young v. Hawaii, 992 F.3d 765, 783 (9th Cir. 2021) (en banc); United States v. Reese, 627 F.3d 792, 800–801 (10th Cir. 2010); GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1260, n. 34 (11th Cir. 2012); United States v. Class, 930 F.3d 460, 463 (D.C. Cir. 2019).
[42] Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019).
[43] N.Y. Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 18 (2022).
[44] Id.
[45] Id.
[46] See supra note 42.
[47] Bruen, 597 U.S. at 11-13.
[48] Id.
[49] Id.
[50] Id. at 30.
[51] Id. (emphasis added).
[52] Id. (quoting Drummond v. Robinson, 9 F.4th 217, 226 (3rd Cir. 2021)) (brackets in original).
[53] See, e.g., Everytown for Gun Safety, Moms Demand Action, Students Demand Action and Everytown Law Recognize the 1-Year Mark of the Bruen Decision, Everytown for Gun Safety (June 23, 2023), https://everytownlaw.org/press/everytown-for-gun-safety-moms-demand-action-students-demand-action-and-everytown-law-recognize-the-1-year-mark-of-the-bruen-decision/.
[54] Id. at 131-32 (Breyer, J., dissenting).
[55] United States v. Rahimi, 602 U.S. 680, 684 (2024) (quoting 18 U.S.C. § 922(g)(8)).
[56] 18 U.S.C. § 922(g)(8) provides two independent bases for liability: 1) The restraining order includes a finding that the individual posed a “credible threat to the physical safety” of a protected person; or 2) The restraining order “prohibits the use, attempted use, or threatened use of physical force.” The Court ruled solely on the basis of the first subsection. See Rahimi, 602 U.S. at 693.
[57] See supra note 54.
[58] See Rahimi, 602 U.S. at 705 (Sotomayor, J., concurring) (acknowleging that the majority’s application of Bruen is less restrictive than it could be).
[59] Id. at 692.
[60] Id. at 691-92.
[61] Id. at 692 (emphasis added).
[62] See id. at 694-700.
[63] See id.
[64] See id.
[65] Id. (emphasis added).
[66] Id. at 747 (Thomas, J. dissenting).
[67] Id. at 698.
[68] See, e.g., Duncan v. Bonta, 133 F.4th 852, 867 (9th Cir. 2025) (conluding that high-capacity magazines were “accessories,” not “arms,” and therefore fell outside the scope of the Second Amendment); Nat’l Rifle Ass’n v. Bondi, 133 F.4th 1108, 1117 (11th Cir. 2025) (using the fact that individuals were considered “infants” until age 21 at the Founding to uphold Florida’s minimum firearm purchase age).
[69] See, e.g., Kipke v. Moore, 165 F.4th 194, 208 (4th Cir. 2026) (relying on dicta from Heller to conclude that making government buildings gun-free zones is permissible without applying Bruen’s history and tradition test).
[70] See, e.g., United States v. Duarte, 137 F.4th 743 (9th Cir. 2025); Maryland Shall Issue, Inc. v. Moore, 116 F.4th 211, 22-23 (4th Cir. 2024) (relying on dicta from Heller and Bruen to conclude that shall-issue permitting regimes are presumptively constitutional).
[71] See, e.g., Md. Code Ann., Crim. Law §§ 4-301(b), 4-303(a), 4-305(b) (prohibitting possession of “assault long guns” and “assault pistols).
[72] See Eugene Vololk, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 191, 192 (2006).
[73] See Va. Const., art. I, § 13 (“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.”).
[74] See, e.g., DiGiacinto v. Rector and Visitors of George Mason Univ., 281 Va. 127 (2011) (“This Court has stated that provisions of the Constitution of Virginia that are substantively similar to those in the United States Constitution will be afforded the same meaning.”) (citation omitted).