This is a topic I've been railing about for years. The plain text of Virginia's brandishing statute says that if a person "points, holds or brandishes" any firearm or anything that looks like a firearm "in such manner" as would cause a hypothetical person to "feel fear" that he was about to be killed or wounded, then that person is guilty of the crime of brandishing a firearm. The problems with this statute all come from the way the Virginia appellate courts have "interpreted" the statute (as if it were written in Sanskrit and needed "interpretation").

Openly carrying is perfectly legal in Virginia (the first "constitutional carry" state, since our "right to bear arms" provision was the model for the language of the Second Amendment). But the "interpretation" imposed upon the plain meaning of the statute does two things.

First, the definition of the word, "brandish" is taken from modern "descriptive" dictionaries that report the usage of the popular press (as opposed to the true, denotative and etymological meaning formerly reported by "prescriptive" dictionaries). There are canons of judicial construction that require a word to be defined in a way that is consistent with the words placed with it as synonyms, so "brandish" is required to be construed in a way that makes its meaning similar to "point" and "hold". But that's not what the courts have done. Instead, they say that "brandish" means to "display in a shameful or ostentatious manner" - i.e., openly carrying.

Secondly, and worse than that, the opinions require Virginia trial courts to ignore the phrase, "in such manner", and to substitute the phrase, "feel fear", as the essential element of the crime. In other words, when charged, the defendant is guilty not for what he, himself, has done, but because some bozo onlooker is willing to testify that he "felt fear". It makes a socially responsible, law-abiding citizen who is openly carrying at the mercy of any fool who doesn't like guns. In more than one case that I have tried, the complaining witness testified that he "felt fear" because he saw that the defendant had been in possession of a firearm and that he "felt fear" because "I didn't know what he MIGHT do." In one case, my client ("Skidmark") was found "not guilty" because the very sensible judge applied the actual law rather than the "interpretations", but in two others, this idea that my client was guilty of a crime because some idiot was afraid of what he "might do" rather than because of anything he HAD done.

I regard this warped, forced, and perverted "interpretation" of the brandishing statute as the single greatest threat to gun owners in Virginia. I have urged the leaders in the Virginia Citizens' Defense League to include repeal or amendment of the brandishing statute in its legislative reform agenda for several years, but no action has been taken, and none contemplated. I met with my own House of Delegates representative, who was then on the Courts & Justice committee, who understood the problem and worked up a plan for amendment while I was sitting there, but the Association of Commonwealth's Attorneys* apparently persuaded him not to buck the system.

Attorney Jonathan Mosely is working on a case coming out of Fredericksburg in which exactly these issues have arisen. I've volunteered to help him out with legal research and writing (as I'm now retired from practice and no longer authorized to take any direct assistance), but he's taking the argument to new levels and needs assistance. Here's a write-up on what he's doing:

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I urge everyone to support this effort.

* (Prosecutors are very well organized and have a powerful lobbying effort that dwarfs anything the NRA or VCDL do.)

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