Fairfax gun prosecutions can get aggressive, but SCOTUS limits that, says Virginia criminal lawyer

Fairfax gun prosecutions can get aggressive. As a Virginia criminal lawyer, I know that self styled progressive prosecutors — including in my county where Steve Descano is the elected commonwealth’s attorney — may often be better for criminal defendants’ interests than those geared towards monolithic “law and order” approaches, but this county can still get aggressive with firearms prosecutions and with seeking substantial risk orders to deprive people of their right to possess firearms, via civil proceedings under Virginia Code § 19.2-152.14

What does the Second Amendment say, and what does the federal Supreme Court say about the 2nd Amendment?

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Second Amendment to the U.S. Constitution. In June 2026 came another great Second Amendment-protecting decision from the federal Supreme Court, following up on the SCOTUS gun rights benefits of D.C.  v. Heller, 128 S. Ct. 2783 (2008), and NYS Rifle & Pistol v. Bruen, 597 U.S. 1 (2022). SCOTUS in June 2026 confirmed that the Second Amendment does not permit in blanket fashion criminalizing simultaneous possession of firearms and illegal drugs / controlled substances. U.S. v. Hemani, ___ U.S. ___ (June 18, 2026). Before Heller, we mainly had silence from the federal Supreme Court about putting teeth into the Second Amendment, and plenty of gun control advocates focused on the phrase “a well regulated militia” to mean limited Second Amendment protections for individual gun ownership and use. My response is that if we do not put teeth in the Second Amendment, that defangs such vital Constitutional amendments as the Fourth Amendment (limiting police searches and seizures), Fifth Amendment (providing the right to remain silent, and Due Process protection, for instance), the Sixth Amendment (for instance providing the right to effective assistance of counsel, under appellate caselaw), and the First Amendment. Be armed with the foregoing appellate cases against your Fairfax gun prosecution or any other firearms prosecution.

Did SCOTUS’s Hemani decision permit lawmakers to draft narrower legislation barring simultaneous possession of firearms and illegal drugs for Fairfax gun prosecutions and Virginia weapons prosecutions generally?

The answer is yes for Fairfax gun prosecutions and firearm prosecutions nationwide, where Hemani says at page 18 of the slip opinions: “In many respects, this case is a narrow one. We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.” Hemani, slip op. at 18. While I do not, in saying the following, want to assist lawmakers in passing updated criminal legislation that will pass Constitutional muster, beware that SCOTUS and other appellate courts may permit laws criminalizing possession of firearms simultaneously with such drugs / controlled substances as phencyclidine /PCP (a dissociative drug) and such hallucinogens as LSD (lysergic acid diethylamide) and psilocybin. Hemani was prosecuted only for possessing marijuana (much more mild than PCP and LSD) while possessing a handgun, when the federal government has already been treating marijuana as less serious than federal law and federal law enforcement treated pot twenty years ago, for instance. If legislators think they can successfully outlaw being under the influence of controlled substances while possessing firearms, that can be a problem when the substance is no more dangerous than alcohol, when considering Hemani‘s rather benign attitude towards the numerous federal presidents reputed to have consumed  a substantial daily amount of alcohol.

Does U.S. v. Hemani help me for a drug trafficking prosecution, or only for drug possession with firearm possession?

The answer is no to the first part and yes to the second part. Hemani invalidates the following harsh Virginia criminal statute that previously could be part of Fairfax gun prosecutions: “It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act… to simultaneously with knowledge and intent possess any firearm on or about his person. A violation of this subsection is a Class 6 felony and … shall be sentenced to a mandatory minimum term of imprisonment of two years.” Virginia Code § 18.2-308.4(B). Hemani does not invalidate criminalizing possessing firearms in the process of drug trafficking: “It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act… or more than one pound of marijuana. A violation of this subsection is a Class 6 felony, and constitutes a separate and distinct felony and any person convicted hereunder shall be sentenced to a mandatory minimum term of imprisonment of five years.” Virginia Code § 18.2-308.4(C). 

What should I do if I have a Fairfax gun mandatory minimum conviction — or such conviction anywhere in Virginia — or prosecution for simultaneous possession of illegal drugs?

The federal Constitution’s ex post facto prohibtion prevents new legislation against possessing drugs and handguns simultaneously, to apply to activity that took place before such legislation becomes active: “No bill of attainder or ex post facto Law shall be passed.” U.S. Const art. 1, § 9. If you are currently being prosecuted for such an alleged crime in Virginia, Hemani should cause that prosecution to be dismissed. If you have already been convicted of such a crime, Hemani should hopefully be sufficient to get you released from any such sentence, and hopefully right away if well advocated, and to have your conviction reversed and removed from your public record, again if well advocated. Consult wiht a qualified Virginia criminal defense lawyer to puruse such relief. 

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense against Virginia felony, misdemeanor, firearm / weapons and DUI prosecutions. A great start to your Virginia criminal defense can start with your free in-person strictly confidential initial consultation with top-rated attorney for the accused Jon Katz about your court-pending prosecution. To schedule your meeting with Jon, contact us at 703-383-1100, Info@KatzJustice.com , and (text) 571-406-7268.