Brandishing firearms is made dangerously close to open carrying by the Virginia Court of Appeals, says Fairfax criminal lawyer

Brandishing firearms (BF) must be able to be distinguished from exercising one’s Second Amendment rights to openly carry handguns, pistols, rifles and other firearms. As a Fairfax criminal lawyer, I know that the Virginia Court of Appeals has dangerously closed the gap between protected holding of firearms and criminally brandishing them. Reed v. Commonwealth of Virginia, 2025 WL 1799846, ___ Va. App. ___ (2025). Your Virginia criminal defense lawyer needs to find a way to argue on the right side of your Second Amendment rights.

What does the Virginia Code criminalize under the brandishing law?

Virginia’s brandishing statute prohibits the following activity: “It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor…” Virginia Code § 18.2-282, 

How can carrying a rifle slung to one’s body and a pistol in a holster amount to BF?

In Reed, the dissent emphatically concluds that the Virginia brandishing statute is not violated by merely carrying a rifle slung to one’s body and a pistol in a holster, even if creepy or fear inducing: “The record does not show any evidence that Reed pointed the firearms, made any threats to any individuals around him, exposed a previously hidden firearm, or exhibited the firearms in an ostentatious, shameless or aggressive manner. Rather, Reed kept the rifle slung on his back and the pistol in a hip holster. While the majority acknowledges that ‘to criminalize merely carrying or possessing a firearm on one’s person would be inconsistent with the longstanding principle that the Second Amendment protects an individual’s right to carry a firearm for purposes of self-defense,’ it nonetheless does exactly that by finding the evidence sufficient to support Reed’s conviction without any evidence that he did more than merely carry lawful firearms.

What should I do if charged with a Virginia firearm or other weapons offense

The law is not as friendly to the Constitution’s Second Amendment as you may have anticipated. Educate yourself about Virginia’s brandishing statute and other weapons laws, so that you may enjoy exercising your weapons rights without having that all go south with a BF prosecution. Fairfax criminal lawyer Jonathan Katz has successfully defended scores of weapons defendants. He will be delighted to meet with you for a free, in-person, strictly confidential discussion about your court-pending case. For your free initial in-person confidential consultation with Jon Katz, call 703-383-1100, Info@KatzJustice.com, and (text) 571-406-7268.