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