On Friday, October 31st, I received an email from the Virginia State Police. Now, most people probably hope they never receive emails from law enforcement, especially ones that open with “*** Effective immediately ****” in 18-point font, but I wouldn’t be telling you about this if it was in reference to something I had done. This email was a notification that, pursuant to a recent court decision, the State Police, who process our background checks for firearm transfers here, would no longer be doing so for private-party transfers. At this point, you’re probably getting ready to close this browser tab because you live in California and the decision in Wilson, et al., v. Hanley doesn’t directly affect you. As I’m fond of saying, though, each state watches the others, so the exact legal reasoning behind the Wilson decision may affect the way background check laws are argued in courts elsewhere.
Background
Since July 1st, 2020, the Commonwealth of Virginia has mandated that all private-party firearm transfers (except transfers of antique firearms) go through the same paperwork and background check process as transfers from dealers to private individuals. While most gun owners probably don’t take issue with the background check itself, there were two big problems with the law as implemented.
First of all, as has been well established, most criminals who use guns in crime don’t obtain those guns legally. Because the mechanism for preventing firearm transfers without background checks is only a legal one, not a physical one, its actual effect against criminals is only as strong as the paper on which it was written. Put more simply, most criminals already get their guns illegally, so making that more illegal does nothing to curb the practice. Gun trafficking can only really be halted by law enforcement.
Second, the background check mandate’s net effect on law-abiding citizens was to impose a financial penalty just for following the law. Although the State Police sent out a letter to FFLs in 2020 advising them of the new requirement and instructing them to charge no more than $15 (plus the standard $2 resident background check fee) to process private-party firearm transfers, in practice, dealers across Virginia continued to charge their existing fees or even increased them. The going rate among dealers in my area is $40 per firearm, and at least one nearby store, which will remain nameless, outright refuses to process private-party transfers. I’m sure no one will admit to this, but I think it highly likely that many otherwise law–abiding citizens simply bought, sold, and traded guns with one another under the table rather than go out of their way to follow the new law. After all, there’s no way to determine whether any transfer law has been broken unless law enforcement makes an arrest for some other offense, seizes the gun in question, and attempts to trace it; even then, an illegal transfer can be difficult to prove.
Legal Reasoning
In his October 16th decision, Judge F. Patrick Yeatts begins by highlighting the Bruen test mandating that any new gun control laws must be “consistent with the Nation’s historical tradition of firearm regulation.” He quickly sets that aside, however, because the law as written has a much more glaring deficiency that doesn’t require any historical background or nuanced understanding of the Second Amendment. Because the background check law applied to handguns, which adults aged 18–20 can legally own but can’t legally buy from dealers, and because the new law required firearm transfers to go through dealers, the law effectively banned handgun ownership for that age group. Any adult under 21 who tried to purchase a handgun, even from another private citizen in a transaction facilitated by an FFL, would have his or her background check denied automatically. In 2020, the court therefore enjoined the law as it applied to adults aged 18–20.
To its credit, the Department of State Police tried to patch up the hole in the background check law by creating a new background check system separate from NICS, thereby allowing adults under 21 to buy handguns at gun shows. The legal proceedings continued, though, because the issue remained of whether or not the law itself was constitutional and how to remedy it if, at least in part, it wasn’t. To address the issue of constitutionality, the court relied not on Bruen or any other Second Amendment case, but instead on an abortion case.
On January 18th, 2006, the U.S. Supreme Court issued a unanimous decision (which, contrary to popular belief, aren’t all that rare and are indeed significantly more common than 5-4 decisions) on Ayotte v. Planned Parenthood. In it, Justice Sandra Day O’Connor proposes “three interrelated principles” that should inform a court’s “approach to remedies” for laws deemed unconstitutional, given how disruptive such a ruling can be:
- The court will only strike down the parts of the law that are unconstitutional, because going further would override the legislature’s authority.
- The court will not rewrite state law to make it constitutional, because to do so would overstep the judiciary’s authority.
- The court will not selectively strike down pieces of a law so as to twist the meaning of the whole, because that would “circumvent the intent of the legislature.” As O’Connor writes, “Would the legislature have preferred what is left of its statute to no statute at all?”
How, then, does any of this apply to a case over background checks for buying guns? Yeatts begins from the 2020 injunction’s conclusion that because the background check law as passed would make it nearly impossible for adults under 21 to exercise a part of their right to keep and bear arms, the law as it applies to that age group is unconstitutional. The law would still apply to adults aged 21 and older, though, which not only obviously circumvents the intent of the General Assembly and Governor who passed the law, but violates the 14th Amendment’s Equal Protection Clause. To that point, Yeatts explains that any age-based legal restriction “must be rationally related to a legitimate government interest,” but exempting only adults aged 18–20 from background checks is totally nonsensical: “Such a distinction would be as arbitrary as exempting any age range, such as 57 to 59, without justification.” He then goes on to point out that, even assuming the law is effective in stopping criminals from getting guns (which I already addressed above), the restrictions on transfers to adults aged 18–20 should arguably be more stringent than on other age groups, not less so.
Conclusion
Using the Ayotte framework, then, the Virginia court’s hand was forced. The law as it applied to adults under 21 was unconstitutional because it had the knock-on effect of becoming a partial gun ban. That is the undeniable legal kernel from which the rest of this decision grows.
Under O’Connor’s first principle, the court had a constitutional mandate to strike down the law as it applied to that age group. The second principle, however, barred the court from doing so because the law never made any distinction between age groups and therefore did not lend itself to being amended in that way by a judge. The third Ayotte principle reinforced the second: because striking down just the unconstitutional part would have turned the law into something that plainly went against the intent behind it, there was no way the Ayotte test (or indeed common sense) could have permitted such an action.
At no point in this decision does Yeatts contend that background checks on private transfers are unconstitutional. In fact, he points out that Nevada, for example, has implemented an age-agnostic background check system that would not run afoul of the Constitution in the same way Virginia’s did. In a concluding paragraph reminiscent of Justice Samuel Alito’s in Cargill, Yeatts even gives the General Assembly approval to come up with a new background check law “to create a system that does not impose disparate treatment based on age. At that time, a court might rightly address the question of whether it is constitutional to require a background check to obtain a handgun through a private sale. Now is not that time.”
The upshot for other states is that this ruling does not declare background check mandates unconstitutional. I fully expect that any state legislature that wants to pass a law trying to force private transfers to go through FFLs will include a provision to alter the background check process so adults under 21 can still purchase handguns. I also fully expect that within the next six months, Virginia will pass the exact same law that was just ruled unconstitutional, only with a line item allowing adults under 21 to purchase handguns, or possibly pass the law again unchanged but accompanied by another law outright banning handgun ownership for adults under 21. In short, state legislatures will now know how to avoid this legal pitfall in background check laws, which means this will be the last “easy” court case regarding one. Beginning now, any court case over background checks will have to argue on the basis of their actual constitutionality.
