Cuccinelli to Argue Militia Clause Protects AR-15s in Supreme Court Brief
“Former Virginia AG [and former Acting Deputy Secretary at the Department of Homeland Security] Ken Cuccinelli is drafting an amicus brief for a coalition of groups and key individuals in the Viramontes semi-automatic gun ban case that is coming in front of the United States Supreme Court,” Second Amendment advocate and NRA “reform director” Dennis Fusaro informed a close circle of fellow activists by email Saturday.
Fusaro, probably most known to AmmoLand readers through his involvement in attempting to persuade an unheeding Association to commit needed resources to a “get out the vote” effort in Virginia’s 2025 election, is soliciting funds to finance the legal work.
Cuccinelli’s novel approach was documented in his challenge to Virginia’s semi-auto/magazine ban asking for declaratory judgment and injunctive relief because the “ban provisions of the Act violate the militia clause of Article I, Section 13 of the Constitution of Virginia.” (While acknowledging that Plaintiffs will suffer “irreparable harm if the Ban becomes effective and is later determined to be unconstitutional,” Spotsylvania Circuit Court Judge William E. Glover subsequently allowed the ban to stand, citing “the potential of harm to the Commonwealth.”
“The Supreme Court’s decision to hear Viramontes v. Cook County, No. 25-238 (7th Circuit), consolidated with Grant v. Higgins (2nd Circuit), presents an opportunity to do more than win the immediate fight over AR-15-platform rifles,” Cuccinelli argues, recapping proposed language discussed in an Aug. 9 Zoom meeting. “The Court has never squarely explained how the Second Amendment’s Militia Clause informs the meaning of the operative right ‘to keep and bear Arms.’ United States v. Miller, 307 U.S. 174 (1939), plainly connected the Amendment to the militia and to the constitutional importance of arms having a relationship to militia purposes.”
That’s a point some of us have been trying to urge the gun groups filing 2A cases to include.
“Ignoring Core Purpose Makes 2nd Amendment More Vulnerable to Infringements: The Militia Aspect,” Part 1 and Part 2, I wrote for Firearms News in 2020. Forgetting the fighting tyranny part serves no one’s interests but would-be tyrants.
“That is the focus I would bring to an amicus brief: establishing a constitutional principle that not only prevents ‘military’ characteristics from becoming a constitutional liability, but makes them an affirmative basis for protection,” Cuccinelli asserts. “The more effective an arm is for the purposes for which a militia would require arms, the harder it should be to argue that its effectiveness somehow removes it from constitutional protection.”
Establishing this with SCOTUS “could therefore reach substantially further than the particular rifles before the Court,” he adds.
Fusaro is urging gun owners who realize the value of what this means to join and support this effort with contributions sent to RightsWatch.org. (Because the donations page does not earmark contributions, a follow-up email specifying it is for the Cuccinelli amicus brief should be sent to [email protected].)
The brief is expected to be filed by Sept. 4 and will be presented in a follow-up report on AmmoLand.
About David Codrea:
David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.
