Settle v. Elhert: Fighting for Background Checks in Virginia
Case Information: Settle v. Elhert (Va. Supreme Court Brief filed July 29, 2020)
At Issue: Earlier this year, Virginia passed a law requiring background checks for private firearm sales. People under the age of 21 were subsequently restricted in purchasing handguns because gun dealers could no longer run federal background checks on these purchasers under the federal handgun minimum age law, which bars people under 21 from buying handguns from federally licensed dealers. An individual plaintiff and Gun Owners of America filed suit claiming that the background check requirement generally, and its resulting age restriction on handgun purchases, violates the Virginia Constitution. A Virginia circuit court found that the background check law generally did not violate the Virginia Constitution, but that it was unconstitutional as applied to 18-to-20 year olds, and blocked the state from enforcing the background check requirement on people in that age group.
Our Brief: We joined Everytown for Gun Safety in an amicus brief arguing that the circuit court incorrectly used an outlier “history and tradition” framework to evaluate the law’s constitutionality and should have applied the two-step Second Amendment test that is used by every federal court of appeals. The US Supreme Court has left this Second Amendment test in place for years, despite having many opportunities to offer differing guidance. We show that the reasoning the circuit court used to reject the two-step test was unsound, and argue that Virginia’s law is constitutional under the test as applied to people ages 18-20.