Could Virginia's Department of Conservation and Recreation ban the open carrying of firearms in state parks under its general park-management authority?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that the Department of Conservation and Recreation lacked authority to impose a general ban on openly carrying firearms in state parks beyond restrictions provided by law. The department's broad power to operate parks and adopt necessary regulations did not, in the AG's view, supply a sufficiently definite statutory basis for that firearms prohibition.

The opinion examined the department's enabling statutes and grouped its park duties around property, recreational facilities, funds, and cooperation with other agencies. It found specific authority to regulate matters such as littering, parking, and admission charges, but no specific grant covering a general open-carry ban.

The AG also pointed to § 18.2-287.4, which then restricted certain loaded, high-capacity center-fire weapons and shotguns in public parks and other public places rather than firearms generally. Because the General Assembly had addressed the subject with defined limits, the department could not infer broader authority from its general enabling legislation.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Senator Ken T. Cuccinelli II asked about the department's authority to regulate open carry in state parks. The opinion expressly did not address firearms regulation connected with hunting on state property.

At the time, 4 Va. Admin. Code § 5-30-200 generally prohibited firearms and airguns in parks, with exceptions for employees, officers, designated hunting areas, and concealed-handgun permit holders. A 2002 Attorney General opinion had already concluded that the department could not prohibit a valid permit holder from carrying a concealed handgun in a state park.

Section 10.1-104(A)(4) permitted rules "necessary or incidental" to duties or powers conferred by law. The AG recognized that regulatory authority could sometimes be implied, but said a regulation still needed an identifiable statutory foundation and could not displace a legislative scheme that had already addressed the object.

What the AG concluded

The department's general park powers did not authorize a general open-carry ban. The opinion found no express or implied authority in the enabling statutes to prohibit firearms beyond restrictions already imposed by law.

Section 18.2-287.4 showed the legislature had drawn narrower lines. That statute addressed particular loaded weapons in public parks and spaces. The AG treated the specific enumeration as weighing against an agency-created ban on firearms generally.

Further limits belonged to the General Assembly. The opinion said the legislature could broaden the statutory restriction or expressly grant the department additional regulatory authority.

The opinion was limited to state parks and open carry. It did not decide hunting-related questions or the authority of other state instrumentalities.

Common questions

Did the opinion say firearms could never be restricted in a Virginia state park?
No. It recognized restrictions expressly imposed by law, including § 18.2-287.4, and noted other statutes limiting possession by location, weapon type, conduct, or category of person.

Why was the department's general rulemaking power insufficient?
The AG said agency regulations must rest on duties or powers conferred by law. The department's enabling statutes did not specifically authorize a general open-carry prohibition, while the General Assembly had enacted narrower firearms restrictions.

Did this opinion cover concealed handguns?
Its question concerned open carry. It discussed a 2002 opinion and a revised regulation concerning concealed-handgun permit holders only as background.

Did it address hunting in state parks?
No. A footnote expressly excluded the department's authority to regulate firearms in the hunting context from the opinion.

Citations

• Va. Code Ann. §§ 10.1-104(A)(4), 10.1-200 (department authority and parks)
• Va. Code Ann. § 18.2-287.4 (certain loaded firearms in public places)
• 4 Va. Admin. Code § 5-30-200 (state-park firearms regulation)
• Dist. of Columbia v. Heller, 554 U.S. ___, 2008 U.S. LEXIS 5268 (June 26, 2008)
• Carbaugh v. Solem, 225 Va. 310, 302 S.E.2d 33 (1983)
• Va. Beach v. Va. Restaurant Assoc., 231 Va. 130, 341 S.E.2d 198 (1986)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-043-Cuccinelli.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

September 26, 2008

The Honorable Ken T. Cuccinelli, II
Member, Senate of Virginia
10560 Main Street, Suite LL-17
Fairfax, Virginia 22030
Dear Senator Cuccinelli:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issue Presented
You request guidance related to the authority of the Department of Conservation and Recreation
1
to regulate the open carrying of firearms in state parks.
Response
It is my opinion that the Department of Conservation and Recreation has only such authority to
2
restrict the open carrying of firearms which is expressly provided by law.
Applicable Law and Discussion
Article 1, Chapter 1 of Title 10.1, §§ 10.1-100 through 10.1-104.4 governs and establishes the
Department of Conservation and Recreation (the “Department”). Section 10.1-104(A)(4) mandates that
the Department “prescribe rules and regulations necessary or incidental to the performance of duties or
execution of powers conferred by law.” In accordance with such authority, the Department has adopted
the following regulation regarding firearms:
No person except employees, police officers, or officers of the department shall carry
or possess firearms of any description, or airguns, within the park. This regulation shall
not apply in areas designated for hunting by the Department of Conservation and
Recreation. This regulation also shall not apply to the carrying of concealed handguns
1

You do not inquire concerning the Department’s authority to regulate firearms in the context of hunting on state
property. Consequently, that issue is not addressed.
2
The right of open carrying of firearms may be limited in certain situations. See infra notes 29-30 and
accompanying text. Such right to openly carry a firearm is further subject to statutory provisions that limit the
manner in which that right may be executed. See, e.g., VA. CODE ANN. § 18.2-282(A) (Supp. 2008) (restricting
conduct regarding pointing, holding, or brandishing any firearm).

The Honorable Ken T. Cuccinelli, II
September 26, 2008
Page 2
within state parks by holders of a valid concealed handgun permit issued pursuant to
[3]
§ 18.2-308 of the Code of Virginia.
4

The Department is the state agency responsible for the management of all state parks. State
parks are open to the general public and are located in areas of the Commonwealth suitable to the
development of outdoor recreational activities, including, but not limited to, camping, concerts, festivals,
5
boating, hunting, fishing, horseback riding, and swimming. The Department’s general authority does not
supersede statutory or case law, public policy, or explicit statements of the General Assembly regarding
6
specific topics.
A 2002 opinion of the Attorney General (the “2002 Opinion”) concluded that the Department
lacked authority to regulate or prohibit the general carrying of a concealed handgun by an individual with
7
8
a valid permit. Further, the common law right to openly carry a firearm long has been recognized.
The 2002 Opinion regarding the authority of the Department to regulate concealed handguns,
concluded that § 10.1-104(A) “empowers the Department to employ personnel to carry out the duties of
the Department; enter into contracts; accept funds and grants and gifts of real and personal property; and
9
assess civil penalties for state park admittance and parking violations.” In addition, the Director of the
10
Department may request that the Governor commission designated conservation officers “to uphold and
11
enforce the laws of the Commonwealth.”
Section 10.1-200 sets out the duties of the Department related to parks and outdoor recreation and
grants the Department the power to administer funds to accomplish the purposes of parks and recreation;
3

4 VA. ADMIN. CODE § 5-30-200 (2005). The Department revised this regulation in 2003 to permit persons
holding valid concealed handgun permits to possess a concealed handgun in state parks. See 2002 Op. Va. Att’y
Gen. Va. 34 (concluding that Department may not issue regulation prohibiting permit holders from carrying
concealed handguns in state parks); 19 Va. Reg. Regs. 1338 (Jan. 13, 2003) (amending 4 VAC 5-30-200 and noting
in “Background” that reason for amendment was 2002 opinion of Attorney General).
4
See generally VA. CODE ANN. § 10.1-200 (2006).
5
See id.; see also Department of Conservation and Recreation, Virginia State Parks, http://www.dcr.virginia.gov/
state_parks/index.shtml (noting state park activities) (last visited July 10, 2008).
6
See generally Stallings v. Wall, 235 Va. 313, 367 S.E.2d 496 (1988) (holding that general delegations of
authority may be broad enough to permit localities to restrict sales of firearms); see also VA. CODE ANN. § 15.2-915
(2008) (clarifying authority of localities regarding control of firearms raised by plaintiff in Stallings and providing
specific guidance). The General Assembly reacted to the issues present in the Stallings matter by making it clear
that local regulation of firearms is limited. The General Assembly may wish to clarify the limits of agency
regulation as well.
7
See 2002 Op. Va. Att’y Gen. Va., supra note 3, at 34.
8
“[I]it has always been widely understood that the Second Amendment … codified a pre-existing right. The very
text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not
be infringed.’” Dist. of Columbia v. Heller, 554 U.S. ___, 2008 U.S. LEXIS 5268, *37 (June 26, 2008).
9
See 2002 Op. Va. Att’y Gen., supra note 3, at 35 (footnotes omitted).
10
See § 10.1-115(A) (2006).
11
See § 10.1-117(A) (2006).

The Honorable Ken T. Cuccinelli, II
September 26, 2008
Page 3
study and develop a comprehensive plan for the Commonwealth’s outdoor recreational needs and
programs and establish standards for outdoor recreational facilities; apply for federal aid respecting
outdoor recreation; act independently or jointly with another department to carry out the Department’s
powers and duties; and report annually to the Governor and General Assembly on the development of a
standard by which the public may determine whether park and recreational needs are being met by the
12
Commonwealth. In addition, the Department shall engage in state park master planning; prescribe and
13
impose penalties for littering; prohibit admission to a state park for which a charge has been assessed
14
15
and regulate vehicle parking in such parks; acquire property by gift, purchase or eminent domain; pay
16
gifts and funds for state parks to the State Park Conservation Resources Fund; establish a card
17
authorizing persons receiving social security disability payments to enter state parks free of charge;
18
protect and maintain the Appalachian Trail and the statewide system of trails; and manage False Cape
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State Park.
Read as a whole, the duties imposed on the Department may be summarized into four categories:
(1) acquisition of property; (2) development of recreational facilities; (3) handling of funds; and
(4) cooperation with other agencies. Authority to govern the recreational activities of parks is implicit in
these general duties. Specific authority to proscribe the conduct of individual citizens is limited to
littering, parking, and the payment of charges. Otherwise, an individual’s conduct must conform with the
general laws of the Commonwealth, which are enforced by Department officers charged with that
responsibility.
The construction of statutes by agencies charged with the administration of such statutes is
20
entitled to great weight. A decision of an agency charged by the General Assembly with statewide
21
administration carries great weight and is entitled to deference, unless it clearly is wrong. The grant of
22
regulatory authority extends only to duties or powers conferred by law.
As such, “regulations,
23
promulgated … pursuant to definitive statutory authority, have the force and effect of law.” Regulations

12

See § 10.1-200.1(A) (2006).
See § 10.1-104 (Supp. 2008); § 10.1-200.2 (2006).
14
See § 10.1-200.3 (2006).
15
See § 10.1-201 (2006).
16
See § 10.1-202 (A) (Supp. 2008).
17
See § 10.1-202.1 (2006).
18
See §§ 10.1-203, 10.1-204 (2006).
19
See § 10.1-205 (2006).
20
See Commonwealth v. Prog. Comty. Club, 215 Va. 732, 739, 213 S.E.2d 759, 763 (1975); Commonwealth v.
Research Analysis Corp., 214 Va. 161, 163, 198 S.E.2d 622, 624 (1973); see also Forst v. Rockingham Poultry
Mktg. Coop., 222 Va. 270, 276, 279 S.E.2d 400, 403 (1981) (noting that Tax Commissioner’s interpretation of tax
statute is entitled to great weight).
21
See Specialty Auto Body v. Cook, 14 Va. App. 327, 330, 416 S.E.2d 233, 235 (1992); Va. Real Estate Bd. v.
Clay, 9 Va. App. 152, 160-61, 384 S.E.2d 622, 627 (1989); 1999 Op. Va. Att’y Gen. 159, 163.
22
See 2002 Op. Va. Att’y Gen., supra note 3, at 36.
23
Carbaugh v. Solem, 225 Va. 310, 314, 302 S.E.2d 33, 35 (1983).
13

The Honorable Ken T. Cuccinelli, II
September 26, 2008
Page 4
24

that “clearly and explicitly mirror” statutory authority are the most likely to be sustained. Therefore,
any regulation the Department adopts must be reasonably grounded in an identifiable and definitive
statutory foundation.
25

Regulatory authority also may be reasonably implied from statutes. The General Assembly, by
grant of regulatory authority to the Department, recognizes that the legislature cannot effectively or
efficiently dictate the all the details of operating parks. Even where regulations by implication conflict
26
with other statutes, they will be upheld, unless there is “a manifest intent on the part of the legislature to
27
preempt the field.” There is no basis for an agency regulation where the legislature plainly, broadly, and
28
comprehensively has addressed the same object.
I find no specific statutory authority granting the Department the authority to prohibit the open
carrying of firearms in state parks. A person’s right to carry a firearm openly is considered universal
within the Commonwealth, subject to definite and limited restrictions upon certain locations and
29
classifications of individuals. Section 18.2-287.4 is the only statute that specifically addresses carrying
of firearms in public parks. In the context of parks and public spaces, the General Assembly merely limits
30
certain classifications of firearms and not firearms generally.
Under accepted rules of statutory
31
construction, the mention of one thing in a statute implies the exclusion of another.
Further, the
Department’s enabling legislation does not specifically authorize a prohibition against the open carry of
32
firearms.
24

See 1999 Op. Va. Att’y Gen., supra note 21, at 163.
See 2002 Op. Va. Att’y Gen., supra note 3, at 36.
26
Va. Beach v. Va. Restaurant Assoc., 231 Va. 130, 132, 341 S.E.2d 198, 199 (1986).
27
Id. at 133, 341 S.E.2d at 199 (1986); see also Norfolk v. Tiny House, Inc., 222 Va. 414, 424, 281 S.E.2d 836,
842 (1981) (noting that courts are obligated to harmonize statute and ordinance where they can “stand together”);
Nat’l Maritime Union of Am. v. Norfolk, 202 Va. 672, 674, 119 S.E.2d 307, 311 (1961) (noting that intention of
Congress to exclude states from exerting power to legislate in particular areas must be manifest).
28
Cf. 1981-1982 Op. Va. Att’y Gen. 112, 113 (concluding that counties have no authority to adopt ordinances
regulating sale of handguns except as specifically permitted by statute).
29
See generally § 18.2-283 (2004) (prohibiting carrying of weapons in places of religious worship); § 18.2-283.1
(Supp. 2008) (prohibiting carrying of weapons in courthouses); § 18.2-287.01 (Supp. 2008) (prohibiting carrying of
weapons in air carrier airport terminals); § 18.2-308.1 (Supp. 2008) (prohibiting possession of weapons on school
property); see also § 18.2-308.1:1 (Supp. 2008) (prohibiting possession of firearms by persons acquitted by reason
of insanity); § 18.2-308.1:2 (2004) (restricting persons adjudicated incompetent from purchasing, possessing, and
transporting firearms); § 18.2-308.1:3 (Supp. 2008) (prohibiting purchase, possession, and transportation of firearms
by persons involuntarily committed); § 18.2-308.2 (Supp. 2008) (restricting convicted felons from purchasing,
possessing, and transporting firearms).
30
See § 18.2-287.4 (Supp. 2008) (restricting right to carry certain “loaded” high capacity center-fire weapons and
shotguns in public parks and certain public areas).
31
See Grigg v. Commonwealth, 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982) (explaining maxim “[e]xpressio
unius est exclusio alterius”); Op. Va. Att’y Gen.: 1997 at 35, 35; 1994 at 9, 11.
32
This opinion is limited in scope and addresses only the open carrying of firearms in state parks. Other
instrumentalities of the Commonwealth may have explicit or implicit authority to provide some measure of
regulation regarding the open carrying of firearms.
25

The Honorable Ken T. Cuccinelli, II
September 26, 2008
Page 5
In light of the General Assembly’s explicit statements regarding limitations on carrying and
possessing firearms, the Department may not infer such authority from its enabling legislation and
prohibit the carrying of firearms not otherwise prohibited within state parks. It is within the sole
discretion of the General Assembly to limit the carrying of firearms in parks beyond that restricted by
§ 18.2-287.4. Additionally, the General Assembly could grant explicit statutory authority to the
Department to accomplish such purpose. I find no authority, express or implied, for the Department to
prohibit the carrying and possession of firearms within state parks beyond that currently prohibited by
law.
Conclusion
Accordingly, it is my opinion that the Department of Conservation and Recreation has only such
33
authority to restrict the open carrying of firearms which is expressly provided by law.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell
3:1099; 1:941/08-043

33

See supra note 2.