Christian John Prekker v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA

Present: Judges Chafin, O’Brien and Russell
PUBLISHED

Argued at Salem, Virginia

CHRISTIAN JOHN PREKKER
OPINION BY
v. Record No. 2175-14-3 JUDGE WESLEY G. RUSSELL, JR.
MARCH 8, 2016
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
Stacey W. Moreau, Judge

James C. Martin (Martin & Martin Law Firm, on brief), for
appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.

Appellant entered a conditional guilty plea to the charge that he illegally possessed a firearm

in violation of Code § 18.2-308.2 after having been previously adjudicated delinquent for an offense

that would have been a felony if he had been an adult. Pursuant to the terms of the conditional

guilty plea, appellant preserved for appellate review his arguments that the trial court erred in

applying Code § 18.2-308.2’s mandatory minimum sentence provisions to him, that Code

§ 18.2-308.2 is unconstitutional as applied to him, and that this Court’s prior interpretation of Code

§ 18.2-308.2’s mandatory minimum sentence provisions renders the statute vague to the point that a

citizen is not on notice as to what the law actually is. For the reasons that follow, we disagree with

appellant and affirm his conviction for violating Code § 18.2-308.2.

BACKGROUND

In 2012, while seventeen years old, appellant was adjudicated delinquent for two instances

of violating Code § 18.2-248(G), possession with intent to distribute imitation cocaine. The
violations of Code § 18.2-248(G) would have been non-violent felonies if appellant had been an

adult when he committed the offenses. Appellant does not dispute that he was over the age of

fifteen at the time of the conduct underlying the delinquency adjudications.1

On December 31, 2013, when investigating another matter at appellant’s residence, police

officers discovered two firearms, specifically two operable long guns. At the time of the discovery,

appellant acknowledged his possession of them, stating that he was keeping them for someone else

who was going to use them to go hunting. Appellant was charged with violation of Code

§ 18.2-308.2 and with grand larceny unrelated to the firearms.2

In the trial court, the parties agreed that appellant had been previously adjudicated

delinquent of offenses that would have been non-violent felonies if he had been an adult, that he

was over the age of fourteen when he committed the offenses, and that, on December 31, 2013, he

was under the age of twenty-nine when he was found to possess the firearms. Recognizing that

these facts provided a sufficient evidentiary basis for convicting him of the violation of Code

§ 18.2-308.2, appellant entered a conditional guilty plea.3 The trial court accepted the conditional

guilty plea and, citing our decision in Carter v. Commonwealth, 38 Va. App. 116, 562 S.E.2d 331

1
At trial, appellant stipulated that he was over fourteen, the age specified in Code
§ 18.2-308.2(A)(iii), at the time of the underlying offenses. At argument, he did not dispute that
he was at least fifteen at the time of the offenses, which is significant for the reasons detailed in
Section II (D), infra.
2
Appellant was convicted of grand larceny and sentenced to three years, all suspended,
for that crime. The grand larceny charge is not a subject of this appeal.
3
Appellant initially pled not guilty and raised constitutional challenges to Code
§ 18.2-308.2 by way of pretrial motion. Only after the trial court rejected his constitutional
challenges did he seek to change his plea. With the consent of the trial court and the
Commonwealth, he entered a conditional guilty plea. See Code § 19.2-254 (“With the approval
of the court and the consent of the Commonwealth, a defendant may enter a conditional plea of
guilty in a misdemeanor or felony case in circuit court, reserving the right, on appeal from the
judgment, to a review of the adverse determination of any specified pretrial motion. If the
defendant prevails on appeal, he shall be allowed to withdraw his plea.”).
-2-
(2002), applied the statute’s mandatory minimum sentencing provisions to appellant. As a result,

the trial court sentenced appellant to two years of incarceration.

Appellant’s conditional guilty plea preserved his ability to challenge on appeal aspects of

both his sentence and his conviction. Specifically, appellant retained the ability to argue that the

trial court erred in applying Code § 18.2-308.2’s mandatory minimum sentence provisions to him,

that Code § 18.2-308.2 is unconstitutional as applied to him, and that this Court’s prior

interpretation of Code § 18.2-308.2’s mandatory minimum sentence provisions renders the statute

unconstitutionally vague.

Appellant noted and perfected his appeal, asserting the following assignments of error:

1. The trial court erred in ruling that in prosecutions for the
violation of Va. Code § 18.2-308.2 where the predicate offense is a
delinquent act, the mandatory minimum sentence provisions are
nonetheless applicable.

2. The trial court erred in failing to rule that Va. Code
§ 18.2-308.2 is unconstitutional as applied to cases involving
predicate delinquent acts in that it unreasonably infringes upon the
Right of the People to Keep and Bear Arms pursuant to the Second
Amendment to the Constitution of the United States (as applied to
the states through the Fourteenth Amendment) and Article I, § 13
of the Constitution of Virginia.[4]

3. Va. Code § 18.2-308.2 is unconstitutional to the extent that
it purports to apply mandatory minimum sentences to cases
involving predicate delinquent acts as it fails to give reasonable
notice as to the applicability of any such mandatory minimum
provisions to delinquent act cases and is thus at best void for
vagueness.

4
The Virginia Supreme Court has held that, in general, “the protection of the right to bear
arms expressed in Article I, § 13 of the Constitution of Virginia is co-extensive with the rights
provided by the Second Amendment of the United States Constitution . . . .” DiGiacinto v.
Rector & Visitors of George Mason Univ., 281 Va. 127, 134, 704 S.E.2d 365, 369 (2011).
Accordingly, our analysis of appellant’s Second Amendment claim applies with equal force to
his Article I, § 13 claim.
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 ANALYSIS

I. Application of Code § 18.2-308.2’s Mandatory Minimum Sentence Provisions to Appellant

Appellant’s first assignment of error presents a question of statutory interpretation. “[A]n

issue of statutory interpretation is a pure question of law which [an appellate court] review[s] de

novo.” Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178

(2007) (citations omitted).

Code § 18.2-308.2(A) provides as follows:

It shall be unlawful for (i) any person who has been convicted of a
felony; (ii) any person adjudicated delinquent as a juvenile 14 years
of age or older at the time of the offense of murder in violation of
§ 18.2-31 or 18.2-32, kidnapping in violation of § 18.2-47, robbery
by the threat or presentation of firearms in violation of § 18.2-58,
or rape in violation of § 18.2-61; or (iii) any person under the age
of 29 who was adjudicated delinquent as a juvenile 14 years of age
or older at the time of the offense of a delinquent act which would
be a felony if committed by an adult, other than those felonies set
forth in clause (ii), whether such conviction or adjudication
occurred under the laws of the Commonwealth, or any other state,
the District of Columbia, the United States or any territory thereof,
to knowingly and intentionally possess or transport any firearm or
ammunition for a firearm, any stun weapon as defined by
§ 18.2-308.1, or any explosive material, or to knowingly and
intentionally carry about his person, hidden from common
observation, any weapon described in subsection A of § 18.2-308.
However, such person may possess in his residence or the curtilage
thereof a stun weapon as defined by § 18.2-308.1. Any person who
violates this section shall be guilty of a Class 6 felony. However,
any person who violates this section by knowingly and
intentionally possessing or transporting any firearm and who was
previously convicted of a violent felony as defined in § 17.1-805
shall be sentenced to a mandatory minimum term of imprisonment
of five years. Any person who violates this section by knowingly
and intentionally possessing or transporting any firearm and who
was previously convicted of any other felony within the prior 10
years shall be sentenced to a mandatory minimum term of
imprisonment of two years. The mandatory minimum terms of
imprisonment prescribed for violations of this section shall be
served consecutively with any other sentence.

(Emphasis added).
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 Pursuant to the statutory language, adults who are convicted of felonies and juveniles

adjudicated delinquent for offenses within certain parameters fall within the statute’s prohibition,

and therefore, possession of a firearm by such a person is a Class 6 felony. Recognizing that

“convicted of a felony” and “adjudicated delinquent” are not synonymous, the General Assembly

identified them separately in subparts (i), (ii), and (iii).

In addition to establishing the prohibition, the statute provides for mandatory minimum

sentences in two instances: (1) offenders “previously convicted of a violent felony as defined in

§ 17.1-805 shall be sentenced to a mandatory minimum term of imprisonment of five years . . . ;”

and (2) offenders “previously convicted of any other felony within the prior 10 years shall be

sentenced to a mandatory minimum term of imprisonment of two years.” Unlike the prohibition

portion of the statute, the mandatory minimum provisions of the statute make no express mention

of delinquency adjudications.

Appellant argues that, because his predicate offenses were delinquency adjudications and

the mandatory minimum provisions do not mention delinquency adjudications, he should not

have received a mandatory minimum sentence. Rather, the trial court should have had all of the

“normal” sentencing options it would have had for a Class 6 felony that was not subject to a

mandatory minimum.

Appellant acknowledges that this Court has rejected this argument in a published opinion,

Carter v. Commonwealth, 38 Va. App. 116, 562 S.E.2d 331 (2002).5 In Carter, we held that

in fashioning a statute to protect the public from the threat of
dangerously armed felons, the legislature expressly included within
the statutory proscription all persons previously “found guilty,”
while juveniles, of a “delinquent act,” deemed felonious.

5
Appellant notes that the underlying adjudications in Carter were for violent offenses and
his underlying adjudications were for non-violent offenses. Because the mandatory minimum
provisions apply to both violent and non-violent felonies, this distinction is immaterial to the
question before us.
-5-
 Subsequent reference in Code § 18.2-308.2(A) to “conviction or
adjudication” simply recognizes terms that sometimes differentiate
determinations of guilt in juvenile and adult prosecutions. Thus,
the inclusive language, “any person,” which appears in the
punishment provisions of the statute, clearly embraces anyone
found in violation of the prohibition. Contrary to defendant’s
argument, the statutory language promotes inclusion, not
exclusion. A different interpretation would exempt dangerous
felons, with demonstrated violent propensities, from a mandated
punishment intended to enhance public protection, a narrow and
illogical construction at odds with legislative intent.

Id. at 125, 562 S.E.2d at 335.

Carter’s holding dictates that we reject appellant’s argument. Recognizing this, appellant

asks that we overrule Carter. This we cannot do. Butler v. Commonwealth, 64 Va. App. 7, 12,

763 S.E.2d 829, 832 (2014) (“Under the interpanel accord doctrine, [a subsequent panel] lack[s]

the authority to revisit” prior published opinions of the Court of Appeals.); Startin v.

Commonwealth, 56 Va. App. 26, 39 n.3, 690 S.E.2d 310, 316 n.3 (2010) (en banc) (noting that

published panel opinions of the Court of Appeals “bind all other three-judge panels under the

interpanel accord doctrine . . . ; [however,] they do not bind the Court sitting en banc”).

Accordingly, consistent with Carter, we find that the trial court did not err in sentencing

appellant pursuant to Code § 18.2-308.2’s mandatory minimum sentence provisions.

II. “As Applied” Challenge Under the Second Amendment

Appellant argues that, as applied to him, Code § 18.2-308.2’s prohibition on possessing

firearms violates the Second Amendment. Specifically, he contends that, although the statute’s ban

on convicted felons possessing firearms is presumptively valid, see District of Columbia v. Heller,

554 U.S. 570, 626-27 (2008); DiGiacinto v. Rector & Visitors of George Mason Univ., 281 Va.

127, 134, 704 S.E.2d 365, 369 (2011), its temporary ban on his possessing a firearm until he

reaches the age of twenty-nine as a result of his adjudications of delinquency violates his Second

Amendment right “to keep and bear arms.” Appellant’s constitutional challenge to a Virginia
-6-
statute presents a question of law that we review de novo. Toghill v. Commonwealth, 289 Va.

220, 227, 768 S.E.2d 674, 678 (2015).

A. The Second Amendment

The Second Amendment to the United States Constitution provides that “[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.” In Heller, the United States Supreme Court conducted a

lengthy historical analysis of its meaning and recognized that the Second Amendment right was

an individual as opposed to collective right. Heller, 554 U.S. at 592. Although it did not limit

the right to only scenarios involving the defense of the home, the Court recognized that the core

of the right was “the right of law-abiding, responsible citizens to use arms in defense of hearth

and home.” Id. at 635 (emphasis added); see also Kolbe v. Hogan, ___ F.3d. ___, ___, 2016

U.S. App. LEXIS 1883, at *18 (4th Cir. Feb. 4, 2016) (stating that, under Heller, “the right of

law-abiding, responsible citizens to use arms in defense of hearth and home lies at the core of the

Second Amendment” right (internal citation and quotation marks omitted)).

Six years later, in McDonald v. City of Chicago, 561 U.S. 742 (2010), the Court found

that the Second Amendment right was incorporated against the states.6 Thus, state statutes that

arguably infringe upon the right are subject to constitutional challenge.

6
A four-justice plurality found that the right was incorporated against the states pursuant
to the Due Process Clause of the Fourteenth Amendment, McDonald v. City of Chicago, 561
U.S. 742, 767 (2010) (plurality opinion), while Justice Thomas found that it was incorporated
against the states by the Fourteenth Amendment’s Privileges and Immunities Clause, id. at 806
(Thomas, J., concurring). Accordingly, although a majority of justices did not agree on a
rationale, a majority did agree that “the Second Amendment right is fully applicable to the
States.” Id. at 750.

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 B. Heller and Levels of Scrutiny

Having recognized that the Second Amendment protects an individual right, the Supreme

Court also recognized that the right was subject to limitations, holding that “[l]ike most rights,

the right secured by the Second Amendment is not unlimited.” Heller, 554 U.S. at 626. The

Court noted that, since the founding era, the right had been subject to various restrictions that

were not believed to suffer any constitutional infirmity. The Court made clear that its holding

did not call into question the legitimacy of these restrictions, noting that

[a]lthough we do not undertake an exhaustive historical analysis
today of the full scope of the Second Amendment, nothing in our
opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or
laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.

Id. at 626-27. The Court emphasized that these categories were “presumptively lawful

regulatory measures [but, were cited] only as examples; [the] list does not purport to be

exhaustive.” Id. at 627 n.26.

Having found both that the right was subject to restriction and that such restrictions were

subject to constitutional challenge, the Court declined to set forth the appropriate level of

scrutiny for courts to apply when addressing such challenges. Because of the breadth of the

District of Columbia’s gun ban, the Court simply noted that the challenged restrictions failed

constitutional muster “[u]nder any of the standards of scrutiny that we have applied to

enumerated constitutional rights . . . .” Id. at 628.

Although it declined to set forth what the appropriate level of scrutiny is, the Court

expressly rejected two potential standards. First, the Court rejected that restrictions on the

Second Amendment right were subject to rational basis review, noting that “[i]f all that was

required to overcome the right to keep and bear arms was a rational basis, the Second
-8-
Amendment would be redundant with the separate constitutional prohibitions on irrational laws,

and would have no effect.” Id. at 628 n.27 (emphasis added). The Court also rejected the

“interest-balancing inquiry” proposed in Justice Breyer’s dissent, commenting that

[w]e know of no other enumerated constitutional right whose core
protection has been subjected to a freestanding “interest-
balancing” approach. The very enumeration of the right takes out
of the hands of government—even the Third Branch of
Government—the power to decide on a case-by-case basis whether
the right is really worth insisting upon. A constitutional guarantee
subject to future judges’ assessments of its usefulness is no
constitutional guarantee at all. Constitutional rights are enshrined
with the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes) even
future judges think that scope too broad. We would not apply an
“interest-balancing” approach to the prohibition of a peaceful
neo-Nazi march through Skokie. See National Socialist Party of
America v. Skokie, 432 U.S. 43, 97 S. Ct. 2205, 53 L. Ed. 2d 96
(1977) (per curiam). The First Amendment contains the freedom-
of-speech guarantee that the people ratified, which included
exceptions for obscenity, libel, and disclosure of state secrets, but
not for the expression of extremely unpopular and wrong headed
views. The Second Amendment is no different. Like the First, it is
the very product of an interest balancing by the people—which
Justice Breyer would now conduct for them anew. And whatever
else it leaves to future evaluation, it surely elevates above all other
interests the right of law-abiding, responsible citizens to use arms
in defense of hearth and home.

Id. at 634-35. Having made clear that neither rational basis review nor an interest balancing

approach was appropriate, the Court reserved further explication on the appropriate standard of

review to future cases. Id. at 635.

C. Determining Appropriate Level of Scrutiny after Heller

The Heller Court’s decision to not specify a level of scrutiny has led to much debate in

the academic literature as to what level of scrutiny is appropriate when considering a Second

Amendment challenge to a statute. See, e.g., Stacey L. Sobel, The Tsunami of Legal

Uncertainty: What’s a Court to do Post-McDonald?, 21 Cornell J.L. & Pub. Pol’y 489, 490

-9-
(2012) (noting that the Heller and McDonald decisions “left a number of critical issues

unresolved, such as which standard of review to apply to Second Amendment legal challenges

under the Fifth and Fourteenth Amendments” (footnotes omitted)); Robert A. Levy, Second

Amendment Redux: Scrutiny, Incorporation and the Heller Paradox, 33 Harv. J.L. & Pub. Pol’y

203, 206 (2010) (recognizing that, having concluded that the District of Columbia’s gun ban

failed under any appropriate level of scrutiny, the Heller Court “did not choose a specific

standard” for future challenges); Mark Tushnet, Permissible Gun Regulations After Heller:

Speculations About Method and Outcomes, 56 UCLA L. Rev. 1425, 1426 (2009) (noting that,

after Heller, we know that “[a] complete ban on the possession of handguns for purposes of

self-defense in the home is unconstitutional, and many longstanding forms of regulation—bans

on possession by felons and prohibitions on carrying firearms in ‘sensitive places’—are

constitutional. What we do not know is why.” (footnotes omitted)); and Andrew R. Gould, The

Hidden Second Amendment Framework within District of Columbia v. Heller, 62 Vand. L. Rev.

1535, 1537 (2009) (“Thus, in resolving the question of whether the Second Amendment protects

an individual right, the Court created a new mystery: How should courts review claims under the

Second Amendment?”).

The debate, however, is more than academic. Faced with Second Amendment challenges

to gun statutes and regulations, different courts have applied different levels of scrutiny to the

challenged restrictions. Some courts have applied strict scrutiny. See, e.g., Kolbe, ___ F.3d at

___, 2016 U.S. App. LEXIS 1883, at *35; Tyler v. Hillsdale County Sheriff’s Dep’t., 775 F.3d

308, 328-29 (6th Cir. 2014), r’hrg en banc granted, opinion vacated, 2015 U.S. App. LEXIS

6638 (Apr. 21, 2015) (recognizing that strict scrutiny is traditionally “appropriate for assessing a

challenge to an enumerated constitutional right” (citations omitted)). Others have applied

intermediate scrutiny. See, e.g., United States v. Chester, 628 F.3d 673, 683 (4th Cir. 2010);
- 10 -
United States v. Marzzarella, 614 F.3d 85, 97 (3d Cir. 2010); United States v. Skoien, 614 F.3d

638, 641-42 (7th Cir. 2010) (en banc). In determining the appropriate level of scrutiny to apply,

many courts have concluded that certain restrictions should receive strict scrutiny, while other

restrictions need only be subject to intermediate scrutiny:

the appropriate level of scrutiny depends on the nature of the
conduct being regulated and the degree to which the challenged
law burdens the right. A regulation that threatens a right at the
core of the Second Amendment—for example, the right of a
law-abiding, responsible adult to possess and use a handgun to
defend his or her home and family—triggers strict scrutiny. A less
severe regulation—a regulation that does not encroach on the core
of the Second Amendment—requires a less demanding
means-ends showing. This more lenient level of scrutiny could be
called “intermediate” scrutiny, but regardless of the label, this level
requires the government to demonstrate a “reasonable fit” between
the challenged regulation and an important government objective.

NRA, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, ___ F.3d ___, ___, 2012

U.S. App. LEXIS 26949, at *21-24 (5th Cir. 2012) (internal citations and quotation marks

omitted). See also Chester, 628 F.3d at 682.

In addition to attempting to determine the appropriate level of scrutiny to apply, many

courts have adopted a two-part framework to analyze Second Amendment challenges. As

recently described by the Unites States Court of Appeals for the Fourth Circuit, a reviewing court

first should

ask whether the challenged law imposes a burden on conduct
falling within the scope of the Second Amendment’s guarantee.
The answer to this question requires an historical inquiry into
whether the conduct at issue was understood to be within the scope
of the right at the time of ratification. If the answer to this initial
inquiry is no, the challenged law is valid. However, [i]f the
challenged regulation burdens conduct that was within the scope of
the Second Amendment as historically understood, then we move
to the second step of applying an appropriate form of means-end
scrutiny.

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Kolbe, ___ F.3d at ___, 2016 U.S. App. LEXIS 1883, at *17 (internal citations and quotation

marks omitted) (alteration in original). Multiple federal circuit courts of appeal have adopted a

similar two-part test. See, e.g., Fyock v. Sunnyvale, 779 F.3d 991, 996 (9th Cir. 2015); Ezell v.

City of Chicago, 651 F.3d 684, 701-03 (7th Cir. 2011); Heller v. District of Columbia, 670 F.3d

1244, 1252 (D.C. Cir. 2011)7; United States v. Reese, 627 F.3d 792, 800-01 (10th Cir. 2010);

and Marzzarella, 614 F.3d at 89.

Both in crafting the two-part test and in deliberating over the appropriate level of

scrutiny, courts are attempting to resolve tension created by Heller. On the one hand, Heller

makes clear that the Second Amendment right provides an individual with protection from

government interference in the same manner that the First Amendment protects an individual’s

First Amendment rights. Heller, 554 U.S. at 635. See also McDonald, 561 U.S. at 778

(concluding that “the Framers and ratifiers of the Fourteenth Amendment counted the right to

keep and bear arms among those fundamental rights necessary to our system of ordered liberty”).

Yet, despite this recognition, the Court gave approval to blanket restrictions of the right when it

delineated its categories of “presumptively lawful regulatory measures,” Heller, 554 U.S. at 627

n.26, some of which, if subjected to the case-by-case, means-ends analysis that characterizes

strict or even intermediate scrutiny, likely would fail to pass constitutional muster.

Although our review of appellant’s constitutional challenge is colored by this tension, we

need not resolve it in this case. For the reasons that follow, appellant’s challenge to the

temporary ban on his possession of firearms due to his felonious conduct fails because the

restriction is so closely analogous to the presumptively valid ban on possession of firearms by

7
This opinion, often referred to as Heller II, stems from the United States Supreme
Court’s remand of Heller for further proceedings consistent with the Court’s opinion.

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felons as to merit no different result.8 Accordingly, we need not determine whether bans on

possession of firearms by felons are permissible because such a restriction falls outside the scope

of the Second Amendment right or may be sustained under the appropriate level of scrutiny,

whatever that may be.

8
The Heller Court’s listing of presumptively lawful restrictions, including a ban on the
possession of firearms by felons, and that listing’s restatement and adoption in McDonald has
been criticized by Second Amendment scholars. Regarding the presumptively lawful restrictions
and their restatement in McDonald, one Second Amendment scholar has written that the listing
was

unnecessary and irresponsible. . . . They had no basis in prior
Supreme Court case law and they were not supported by evidence
of the original meaning of the Second Amendment. . . .

Consider . . . “[N]othing in our opinion should be taken to
cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill . . . .” This sounds
intuitively obvious, at least at first. But how “longstanding” are
these prohibitions? [The majority] either did not know, or decided
not to tell us in Heller. Apparently, however, the first general ban
on the possession of firearms by felons was enacted in 1968. This
was 177 years after the adoption of the Second Amendment and
less than a decade before the District of Columbia handgun ban
was enacted.

Nelson Lund, Two Faces of Judicial Restraint (Or Are There More?) in McDonald v. City of
Chicago, 63 U. Fla. L. Rev. 487, 502-03 (2011). See also Glenn Harlan Reynolds, Second
Amendment Limitations, Georgetown J. L. & Pub. Pol’y at *7 (forthcoming),
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2727790 (“But the Heller “safe harbor”
appears to be showing signs of leakage. Or, at least, it is not transforming–as it might have–into
a free pass for extensive limitations on firearms ownership. Though I doubt that the felons . . .
limitation on Second Amendment rights is in any danger of abandonment, it is coming in for
more judicial scrutiny.”).
Given the United States Supreme Court’s clear statements in both Heller and McDonald
that felon-in-possession bans are presumptively valid and the Virginia Supreme Court’s adoption
of that language in DiGiacinto, we must assume that such a restriction is valid. It is up to those
courts, whose decisions are binding upon us, to revisit the specific language and its effects if they
see fit.
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 D. Appellant’s Challenge to Code § 18.2-308.2(A)(iii)

As with any constitutional challenge to a Virginia statute, we begin with the proposition

that the acts of the General Assembly are presumed to be constitutional, and we “will not

invalidate a statute unless that statute clearly violates a provision of the United States or Virginia

Constitutions.” Marshall v. N. Va. Transp. Auth., 275 Va. 419, 427, 657 S.E.2d 71, 75 (2008)

(citations omitted). “[E]very reasonable doubt regarding the constitutionality of a legislative

enactment must be resolved in favor of its validity.” Id. at 428, 657 S.E.2d at 75 (citations

omitted).

Appellant does not dispute that Code § 18.2-308.2(A)(i)’s permanent ban on felons

possessing firearms is valid, recognizing that it expressly falls within the scope of presumptively

valid regulations recognized by both the United States Supreme Court and the Virginia Supreme

Court. Heller, 554 U.S. at 626-27; DiGiacinto, 281 Va. at 134, 704 S.E.2d at 369. Rather, he

attacks the statute’s temporary ban on firearm possession by non-violent juveniles who have

been adjudicated delinquent for acts that were felonies if committed by adults, arguing that

although it is certainly reasonable for a felon to lose his gun rights,
the loss of such rights, even if only to age 29, by a citizen who
merely has a history as a non-violent juvenile delinquent is
irrational, endangers the public (more than it helps them) by
unreasonably reducing the number of citizens available for the
common defense, and is thus unconstitutional . . . .

Appellant stipulated that, as a juvenile, he violated Code § 18.2-248(G), possession with

intent to distribute imitation cocaine, and that such violations would have constituted Class 6

felonies if appellant had been charged as an adult. The elements of the offense and the conduct

necessary to violate Code § 18.2-248(G) are the same whether the offender is tried as a juvenile or

as an adult. Cf. Chardin v. Police Comm’r of Boston, 989 N.E.2d 392, 401 (Mass. 2013) (The

fact that a juvenile offender cannot “be sentenced to the State prison does not change the nature

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of his offense, even though an ‘adjudication’ of delinquency generally is not a ‘conviction’ of a

crime. In other words, although the juvenile justice system did not treat [the juvenile offender]

as a ‘criminal’ for his possession of a firearm without a license . . . he nonetheless committed an

unlawful act that was a felony.” (citations omitted)), cert. denied, ___ U.S. ___, 134 S. Ct. 525

(2013). Thus, given his concession regarding the constitutionality of the ban on felons possessing

firearms, appellant necessarily has conceded that he engaged in conduct that appropriately could be

punished by a lifetime ban on his possession of firearms.

Appellant offers no distinguishing feature of his juvenile adjudications that justifies finding

that the presumptively valid ban on possession of firearms by felons does not apply with equal force

to juveniles who committed identical felonies.9 His only proffered justification, that the temporary

ban imposed by Code § 18.2-308.2(A)(iii) removes him from the pool of citizens who can provide

for “the common defense,” also would apply to felony convictions, whether the underlying offense

was committed by an adult or a juvenile who was tried as an adult, because those convicted would

similarly be removed from the pool.

Furthermore, it is worth noting that juvenile adjudications were unknown at common law,

unknown at the time of the ratification of the Second Amendment in 1791, and were still unknown

9
We recognize that juvenile adjudications differ from adult criminal proceedings in
numerous ways. See In re Gault, 387 U.S. 1, 14 (1967) (“From the inception of the juvenile
court system, wide differences have been tolerated—indeed insisted upon—between the
procedural rights accorded to adults and those of juveniles. In practically all jurisdictions, there
are rights granted to adults which are withheld from juveniles.”). Appellant, however, does not
advance any of those differences as a reason for finding the temporary ban on his possessing
firearms unconstitutional. Accordingly, we do not address those differences here.

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at the time of the ratification of the Fourteenth Amendment in 1868.10 The advent of the juvenile

justice system was largely a twentieth-century phenomenon.

The first separate and distinct juvenile court in the world was
established in Cook County (Chicago) in 1899 through passage of
the Illinois Juvenile Court Act. This Act created a separate court
for minors who committed criminal offenses and directed the
establishment of separate institutions for youths in order to
segregate them from adults, thus avoiding the mixing of juveniles
with adult criminals. The initiation of the juvenile justice system
in Virginia occurred in 1904 with the creation of authority for
judges to sentence juveniles to indeterminate sentences in separate,
privately run facilities, even though they were still tried in the
regular criminal justice system. In 1914, Virginia established
juvenile justice jurisdiction for courts by legislation that largely
paralleled the Illinois statute.

Juvenile Law and Practice in Virginia, ¶ 1.1 (Robert E. Shepherd, Jr., ed., 1994 & Supp. 1999).

In both 1791 and 1868, Virginia adhered to the common law rule, meaning that

[a]n infant, under seven years of age, is conclusively presumed to
be incapable of crime, and no evidence can be received to rebut the
presumption. Between seven and fourteen, he is within the age of
discretion, but still presumed doli incapax. This, however, is a
mere prima facie presumption which may be rebutted by evidence
of capacity sufficient to understand the nature of the act and its
consequences. The presumption of incapacity is very strong at
seven years of age, but it decreases with the progress of years. The
first point of inquiry is whether the accused was able to distinguish
between right and wrong, to understand the nature of the crime he
was committing, and that it was deserving severe punishment.

10
At oral argument, appellant argued that we should view his claim in the historical
context of the Second Amendment right as understood at the time of ratification, stating that he
did not “know when else you would decide it.”

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Law v. Commonwealth, 75 Va. 885, 888-89 (1881). At fifteen years of age, there was no

presumption of incapacity and a defendant was treated as an adult.11 Appellant was seventeen at

the time of the adjudications and over fifteen at the time of the offenses. Applying the rule in

effect at the time of ratification of either the Second Amendment or the Fourteenth Amendment,

appellant would have been charged, tried, and punished as an adult.12 Accordingly, viewing the

Second Amendment right as a historical matter, a ban on possession by a juvenile who was

adjudicated delinquent for a felonious act rests on the same footing as the presumptively

constitutional ban on a felon possessing firearms.13

11
If the government rebutted the presumption, children between seven and fourteen were
charged, tried, and punished as adults. For example, the Virginia Supreme Court noted an
English case where “a boy between eight and nine years of age . . . was executed for arson – it
appearing he was actuated by malice and revenge, and had perpetrated the offence with craft and
cunning.” Law, 75 Va. at 889.
12
That possession with intent to distribute imitation cocaine was not an offense in 1791
or 1868 does not change the analysis. It is clear that the framers and ratifiers of the Second and
Fourteenth Amendments were familiar with the concept of felonies and the power of legislative
bodies, such as the General Assembly, to criminalize conduct. To limit the requisite felonies to
only those in place in 1791 is the interpretive equivalent of limiting the right to keep and bear
arms only to muskets because more modern firearms came to be at a later point in time. We
reject such a position. See Heller, 554 U.S. at 582 (“Some have made the argument, bordering
on the frivolous, that only those arms in existence in the 18th century are protected by the
Second Amendment. We do not interpret constitutional rights that way. Just as the First
Amendment protects modern forms of communications and the Fourth Amendment applies to
modern forms of search, the Second Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence at the time of the founding.”).
13
We note that, despite this historical backdrop, the General Assembly did not ban
appellant from ever again possessing firearms as a result of his juvenile adjudications. Rather,
the ban on his possession of firearms as a result of his juvenile adjudications was only
temporary. By the express terms of the statute, his ability to possess firearms would have been
restored when he reached the age of twenty-nine. Code § 18.2-308.2(A)(iii). Ironically,
appellant’s subsequent conviction for grand larceny subjects him to the permanent ban on
possession of firearms found in Code § 18.2-308(A)(i), a provision appellant concedes is
constitutional.
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 III. Appellant’s Notice Challenge to the Mandatory Minimum Sentence Provisions

In his third assignment of error, appellant attempts to constitutionalize the statutory

interpretation argument that underpins his first assignment of error. Specifically, he argues that,

because the plain statutory text of Code § 18.2-308.2’s mandatory minimum sentence provisions

does not mention delinquency adjudications, a person in his situation is not provided notice that

he is subject to a mandatory minimum sentence. He argues that our decision in Carter, where we

applied the mandatory minimum sentence provisions to a situation where the predicate offense

was a delinquency adjudication, is so divorced from the statutory text that it renders the statute

void for vagueness.

Central to this argument is appellant’s position that a person is deemed to be on notice of

statutory prohibitions, but is not on notice of published court decisions interpreting those

statutes. Appellant, however, offered no direct authority for this position and provided no

authority from which such a conclusion reasonably could be analogized.

Rule 5A:20(e) provide[s] . . . that the opening brief shall
include [t]he principles of law, the argument, and the authorities
relating to each question presented. Statements unsupported by
argument, authority, or citations to the record do not merit
appellate consideration. The [Virginia] Supreme Court concluded
that when a party’s failure to strictly adhere to the requirements of
Rule 5A:20(e) is significant, the Court of Appeals may . . . treat a
question presented as waived.

Atkins v. Commonwealth, 57 Va. App. 2, 20, 698 S.E.2d 249, 258 (2010) (internal quotation

marks and citations omitted) (alterations in original).

When a party believes that a trial court has erred, it is that party’s duty to present that

error to this Court with legal authority to support its contention. Fadness v. Fadness, 52

Va. App. 833, 851, 667 S.E.2d 857, 866 (2008). Because appellant provides no supporting legal

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argument or authority to support his position, and because we find that this omission is

significant, we conclude that this argument is waived pursuant to Rule 5A:20(e).

CONCLUSION

For the foregoing reasons, we affirm the rulings of the trial court.

Affirmed.

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