0:02 Hi, I'm farms attorney Gilbert Amler and
0:04 I'm coming to you today on the heels of
0:06 a difficult election cycle, especially
0:08 for those of us here in Virginia.
0:10 Because in Virginia, we're looking at
0:12 the prospect in 2026 of the Democrats
0:15 having control of the House, the Senate,
0:17 and the governor's mansion. And if you
0:19 know anything about Virginia politics,
0:21 you know that means we're going to be
0:23 looking at the prospect of gun bans in
0:25 2026. We're probably talking about
0:26 restrictions on the types of weapons you
0:29 can own, magazine restrictions, all
0:31 sorts of craziness. And as you might
0:33 recall, there was a similar push to
0:36 restrict firearms back in 2020. And
0:39 during that 2020 push to restrict
0:41 firearms, Virginiaians got really
0:43 grassroots in their resistant efforts.
0:46 They joined groups like Goa and Virginia
0:48 Citizens Defense League. They attended
0:50 sanctuary city meetings to make second
0:53 amendment sanctuary jurisdictions where
0:55 people committed not to enforce
0:57 unconstitutional gun laws. And they
1:00 showed up for massive protests outside
1:02 the capital in Richmond. And it was
1:05 largely effective. Back in 2020, those
1:08 efforts did a tremendous job of limiting
1:10 the gun control that was actually
1:12 passed. And I imagine many of you are
1:14 going to want to turn to a similar
1:18 playbook in 2026 when we start seeing
1:20 these firearms restrictions proposed.
1:22 And of course, I think the danger in
1:25 2026 is even greater than the danger was
1:27 back in 2020. But I also want to talk
1:30 about the way that the case law has
1:34 changed between 2020 and the present
1:37 time, 2025, when we're filming this,
1:39 with respect to the right around open
1:41 carry. Because what I observed in
1:42 attending those meetings and those
1:45 protests was Virginiaians open carrying
1:48 firearms almost as a form of speech in
1:50 essence saying, "Look, we have these
1:52 guns and we're not planning we don't
1:53 want to give them up. We're not planning
1:56 to give them up." And I want to talk
1:59 about the way the case law has made open
2:02 carry so limited here in Virginia that I
2:04 think you could be arrested for that
2:07 form of speech here in 2025. Before we
2:09 dive into this subject, however, as
2:11 always, if you have not yet hit that
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2:22 Amendment content, especially Second
2:24 Amendment content related to the
2:25 restrictions that we're going to see
2:27 here in Virginia because we will do
2:29 videos and try to keep you informed of
2:31 what is going on at the ground level
2:33 here in Virginia. Because as goes
2:36 Virginia, so might go the nation when it
2:38 comes to gun control. We've seen this
2:40 type of stuff where it passes spread
2:42 from jurisdiction to jurisdiction.
2:45 Unfortunately, Virginia is a major cog
2:48 in that progression of anti-gun laws. I
2:51 think now, as I said, back in 2020, I
2:54 attended lobby day in Richmond with
2:56 excess of 20,000 people. And of course,
2:59 the law has actually changed itself.
3:02 Now, there are restrictions in Richmond
3:04 on carrying inside Capitol Square. I
3:05 understand that. You guys understand
3:07 that. You know, you wouldn't be allowed
3:09 in present time to carry a firearm into
3:11 Capital Square. You know, if you have
3:13 sanctuary meetings in sanctuary
3:15 jurisdictions, you've got to be aware of
3:17 whether the jurisdiction has already
3:19 passed local gun control. Frankly, if
3:20 they've already passed local gun
3:22 control, probably not a good place to
3:24 have a sanctuary, Second Amendment
3:26 sanctuary movement anyway because
3:28 they're probably not open to it.
3:31 However, even elsewhere where you might
3:33 still be allowed to show up at a county
3:35 building at a board of supervisors
3:39 meeting and have a push for a Second
3:42 Amendment sanctuary in the community.
3:44 And some of you might decide, hey, I'm
3:45 going to open carry and I'm going to
3:48 carry my firearm to make a point that I
3:50 want these firearms. I want to I can
3:52 responsibly carry them. I can
3:54 responsibly exercise this right. I own
3:56 them today and they're not a threat to
3:58 anyone. they shouldn't be taken away
4:00 from me. And I understand that there's a
4:02 political speech component to why people
4:04 would open carry firearms at such
4:07 meetings. And yet, I think they're
4:08 probably brandishing under current
4:11 Virginia law. And it gives me no
4:13 pleasure to say that. It doesn't make me
4:15 feel warm and fuzzy inside to say I
4:16 think you're brandishing. But
4:18 nonetheless, I think you're brandishing.
4:20 Let's talk about brandishing in Virginia
4:22 and how this case law has developed to
4:25 the point where open carrying in
4:27 attending such a meeting like a board of
4:29 supervisors meeting is probably
4:31 brandishing under current Virginia law.
4:33 Brandishing is found at 18.2-282
4:36 of the Virginia code and it criminalizes
4:39 holding or pointing a firearm in a
4:40 manner that causes reasonable
4:43 apprehension in the mind of another. And
4:45 the Virginia courts, the appellet
4:47 courts, court of appeals, and the
4:49 Supreme Court, when they talk about what
4:50 constitutes brandishing, they've made it
4:53 very, very clear, as does the language
4:55 of the statute, that a firearm does not
4:58 have to actually be pointed in order to
5:00 constitute brandishing. Holding it, even
5:01 without putting your hand on the gun
5:04 itself, if it's supported on your body,
5:08 can be enough for brandishing. However,
5:10 there's a second part there because it's
5:12 got to cause reasonable apprehension in
5:14 the mind of another. This is old news
5:16 that you don't have to point the
5:19 firearm. What has changed is that in the
5:21 past, historically, when we saw people
5:24 charged with brandishing, they were
5:26 doing something aggressive with the
5:28 firearm. Now, the case law since a case
5:31 called the Mars case has not been great.
5:33 Now, the Mars case involved somebody who
5:35 did something aggressive with a flare
5:37 gun, got charged under and convicted
5:39 under the same statute. In fact, the
5:41 statute specifically reaches items that
5:43 are not firearms but appear to be
5:46 firearms. And in the Mars case, what you
5:49 had was somebody who was, for lack of a
5:50 better term, I I think he was probably a
5:52 drug addict or drunk. He was in a
5:56 cemetery and causing disruption. He saw
5:59 a man and a woman. He made advances
6:01 towards the woman. when she was
6:04 resistant to him, he picked up his shirt
6:06 displaying the flare gun tucked in his
6:07 waistband and said, "I'll have some of
6:09 that." Or something along those lines.
6:12 Disgusting behavior and aggressive
6:13 behavior. And he was charged with
6:16 brandishing. And he was convicted. Now,
6:18 in convicting him, the Supreme Court
6:21 used the language that brandishing
6:24 occurs when someone carries a firearm in
6:26 an ostentatious,
6:29 shameless, or aggressive fashion. Now,
6:31 in that case, he was doing something
6:33 with the firearm that was aggressive. He
6:35 was threatening somebody else with the
6:38 firearm or and of course I'm saying
6:40 firearm, the object that looked like a
6:42 firearm in that case. And most of the
6:44 cases where we've seen branching have
6:46 that aggressive component. But the
6:48 Supreme Court left the door open by
6:51 saying ostentatious or shameless matter
6:54 to say there are things there are ways
6:56 people could carry firearms that are not
6:58 necessarily aggressive that could be
7:01 ostentatious or shameless and could
7:02 still result in a brandishing
7:04 conviction. And we see that in the case
7:07 of Reed versus Commonwealth. Reed versus
7:09 Commonwealth was released this summer.
7:11 It was a court of appeals decision and
7:14 Reed was essentially Mr. Reed and I I
7:16 don't think what he was doing was
7:18 necessarily brilliant, but I would have
7:20 previously thought it was legal. He was
7:22 walking back and forth outside of a
7:25 school open carrying what they described
7:28 as an assault rifle, presumably an AR-15
7:31 variant or an AK-47 variant. Police got
7:34 called a couple times that day and
7:37 ultimately they arrested Mr. Reed for
7:39 carry on school property. There was a
7:41 huge dispute of whether he was actually
7:43 on the school property or off the school
7:46 property. I'm not even going to get into
7:48 that dispute. The court concluded that
7:50 ultimately he was on school property.
7:52 However, he was right at the fringe. He
7:54 was sort of on the driveway and along
7:56 the side of the public road. More
7:57 importantly, however, even though he
7:59 didn't do anything aggressive with the
8:01 firearm other than carry it in a sling
8:04 on his shoulder, he was charged with
8:06 brandishing and he was convicted of
8:08 brandishing and the court of appeals
8:11 upheld the brandishing conviction. And
8:12 what they said is he might not have
8:15 necessarily been aggressive, but he was
8:17 certainly ostentatious when carrying the
8:19 firearm. And they actually go to the
8:21 dictionary and pin down ostentatious.
8:24 They say you are ostentatious with a
8:27 firearm if you're carrying it in a
8:29 manner that draws attention to it, if
8:32 it's gaudy or showy.
8:34 Think about that for a moment. If you
8:36 are carrying a firearm in a manner that
8:39 calls attention to it, if it's gaudy, if
8:41 it's showy, and if people call and say
8:43 that they're scared about it, I think
8:45 under the current case law from the
8:47 Virginia Court of Appeals, you could be
8:50 charged with and even convicted of
8:52 brandishing. Which brings us back to
8:55 those protests because I remember people
8:57 doing things like open carrying Barrett
9:00 50 cows during those protests. They are
9:02 certainly drawing attention to their
9:04 firearms when they do that. And
9:06 unfortunately, if people start calling
9:08 the police and saying that they are
9:10 scared, and of course in this political
9:12 climate, you can almost bet there's some
9:14 legislators that will call the police
9:16 and say they are scared. All of a
9:18 sudden, I think they have enough for
9:19 brandishing because you've got
9:22 apprehension in the mind of another.
9:24 Again, it apprehension alone didn't used
9:26 to have to be enough. used to be someone
9:28 was scared and there was some aggressive
9:31 conduct on your part, but now it's
9:33 apprehension and you were doing
9:35 something flashy or showy or drawing
9:37 attention to the firearm. And by open
9:39 carrying, you are doing that, especially
9:41 if you're open carrying to make a point
9:43 at a protest. In fact, when Mr. Reed was
9:45 arrested, he told the arresting
9:48 officers, "I was trying to make a point,
9:52 but I guess I explic explicative up." So
9:55 he was carrying outside the school to
9:57 make a point that hey you shouldn't have
9:59 to be afraid of somebody simply because
10:01 they have a rifle with them and he was
10:04 convicted for that conduct. And I am
10:07 concerned as we look forwards to 2026
10:09 and we're looking at potentially
10:11 attending things like second amendment
10:13 rallies and sanctuary meetings that for
10:16 those of you that carry firearms to make
10:17 a point to draw attention to the
10:19 firearms and to say look I'm not
10:21 aggressive. if I own all these items and
10:23 you shouldn't be scared by them that in
10:25 doing so you might actually be
10:27 committing a crime. As I said, we're
10:29 going to keep you posted on the events
10:31 as they transpire here in Virginia. So,
10:32 if you have not yet subscribed to this
10:34 channel, think about giving us a
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