Fencing surrounds the Capitol Thursday in advance of a pro-gun rally Monday expected to draw thousands. (Ned Oliver/ Virginia Mercury)

A Richmond Circuit Court judge denied a request by pro-gun advocates to overturn a temporary firearms ban on Capitol Square, where thousands of opponents of new gun control legislation are planning to rally Monday.

“This is the right decision,” said Gov. Ralph Northam in a statement following the ruling. “I took this action to protect Virginians from credible threats of violence. These threats are real — as evidenced by reports of neo-Nazis arrested this morning after discussing plans to head to Richmond with firearms.”

The lawsuit, filed on behalf of the Virginia Citizens Defense League and Gun Owners of America Inc., struck a taunting tone, dismissing Northam’s warning earlier this week that threats by white supremacist and other extremist groups necessitated the security measures.

They have appealed the ruling to Virginia Supreme Court, according to Attorney General Mark Herring’s office.

“Perhaps the governor is fearful that some Virginians might be ‘extremely’ in favor of preserving their constitutional rights,” they wrote in the hastily filed lawsuit. “However, so far as plaintiffs are aware, ‘extremism’ in support of constitutional rights is no crime, and presents no danger to anyone.”

In an hour-long hearing Thursday afternoon, a lawyer for the two groups, David Browne, contended the ban violated both the First and Second amendments of the U.S. Constitution as well as a law passed by the General Assembly that explicitly denies Northam the authority to use his emergency powers to ban firearms.

Browne, who refused to talk to reporters after the hearing or confirm the spelling of his name, also said he doubted the Northam administration’s contention that violent groups were planning to engage in violence.

“This is not another Charlottesville … these are responsible gun owners,” he said.

Virginia Solicitor General Toby Heytens countered that just Thursday morning the FBI had arrested three members of a neo-Nazi group that were apparently planning to attend the rally “in anticipation of a possible race war.”

He argued case law does not support the groups’ contention that the ban violates either the First or Second amendments and, at best, is unsettled, making it inappropriate for a judge to grant the preliminary injunction against the gun ban the groups are seeking.

As to Northam’s authority under state law — a point GOP leaders in Virginia have also raised — he noted the code expressly states it only governs Northam’s emergency power and does not limit authority granted to him elsewhere in the code. To that end, Heytens argued the governors’ executive power over the state Department of General Services, which in turn has legislative authority to govern the square, gives Northam the same authority to ban guns as it does to set opening and closing times for the grassy public space.

“If the Department of General Services has authority to set times, it has the authority to ban firearms,” he argued.

In an opinion issued a little over an hour after the hearing, Judge Joi Taylor sided with Northam, writing that the gun groups hadn’t made a compelling enough argument to warrant a temporary injunction. “The Court finds that the Governor is granted sufficient deference within and has sufficient authority outside of the Commonwealth of Virginia Emergency Services and Disaster Law of 2000 by which he could enact Executive Order Forty-Nine,” she wrote.

The groups have not yet said whether they will appeal, but Taylor said during the hearing she was issuing her opinion as rapidly as possible to give them enough time to challenge it in a higher court.

Workers on Capitol Square spent the day preparing for the rally, erecting a chain link fence around the Capitol to corral attendees into the front portion of the broad, sloping lawn.

Republican lawmakers, who spent the afternoon debating gun legislation in the Senate, joined the gun groups in questioning the ban, noting that the same event had been held without incident at the Capitol for more than a decade.

In a statement Thursday afternoon, GOP leaders in both parties said they had requested a secure briefing from Northam’s administration on the threats he was using to justify the emergency.

“Considering the abridgment of the constitutional rights of Virginians your declaration has imposed, and because we have serious concerns about whether a governor has the authority to enact such restrictions, we believe it is imperative that leaders of the General Assembly – representing both majority and minority caucuses – are appropriately briefed as to the nature of these threats,” they wrote.

In response, Northam’s office invited Democratic and GOP leaders to a briefing scheduled for Friday afternoon. 

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Ned Oliver
Ned, a Lexington native, has more than a decade’s worth of experience in journalism, beginning at The News-Gazette in Lexington, and including stints at the Berkshire Eagle, in Berkshire County, Mass., and the Times-Dispatch and Style Weekly in Richmond. He is a graduate of Bard College at Simon’s Rock, in Great Barrington, Mass. Contact him at [email protected]
Graham Moomaw
A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville. Contact him at [email protected]