West Virginia Gun Owner
Protection Act of 2012
WVCDL's West Virginia Gun Owner Protection Act of 2012
will be introduced in the West Virginia House of Delegates
and the West Virginia Senate after the 2012 regular
session of the Legislature begins on January 11,
2012. Similar legislation, HB
3125 and SB
543, was introduced but failed to pass during the
2011 regular legislative session.
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- Click here for the
current draft of the West Virginia Gun Owner Protection
Act of 2012.
- Click here for
West Virginia Gun Owner Protection Act of 2012 issue
- Click here for a
PDF printable copy of the outline below.
WVCDL's West Virginia Gun Owner Protection Act of 2012
makes wide-ranging improvements in West Virginia gun laws,
(This analysis begins at §61-7-3)
- Authorizes concealed carry without a license in most
- The proposed revisions to W.Va. Code § 61-7-3
would authorize individuals to carry a concealed
weapon without a license in all but a handful of
locations, almost of which are subject to specific
signage requirements (the form of the required sign is
identical to but the required text is different than
- In most cases, an individual who lawfully carries a
concealed weapon without a license is subject to a
duty to inform a law-enforcement officer who contacts
the person for an official purpose.
- The proposed amendments to §61-7-7 prohibit
certain categories of individuals from carrying a
concealed weapon in a public place; these categories
generally correspond to most states' categories of
individuals who are disqualified from obtaining a
concealed weapons license. This bill permits an
otherwise disqualified person to petition the circuit
court for relief from disability.
- Reforms concealed weapons licensing law:
- Expands scope of license to cover all weapons
- Establishes multi-class licensing system.
- Based on North Dakota's recent success in
expanding their reciprocity with other states by
creating a two-tier licensing system, WVCDL is
proposing a 5-class licensing system in
which--depending on a person's age and whether the
person has been fingerprinted and/or completed a
specific live fire shooting proficiency exercise in
addition to a basic demonstration of competence with
a handgun--individuals who choose to upgrade to a
Class 1 license would qualify for reciprocity in
every state that has some form of reciprocity law in
classes would have differing reciprocity maps.
WVCDL estimates that Class 3 licenses (the base
level of license for licensees at least 21 years
of age) would be honored in all states with
which West Virginia currently has full
reciprocity plus Alabama, Colorado, Georgia,
Maine, New Hampshire, Texas, and
Wisconsin. For reference, here is a
nutshell view of West Virginia's current
reciprocity and general reasons why West
Virginia lacks reciprocity with other states:
- Reduces minimum licensing age (for Class 4 and 5
licenses only) from 21 to 18.
- Expands permissible forms of proof of training for
base (Class 3 or 5) license.
- Establishes nonresident licenses.
- Closes "if background checks are complete" loophole
on 45 day time limit for issuing license and require
sheriff to issue temporary license or temporary
renewal license not later than the end of the 45-day
period unless a regular license is issued.
- Improves background check process to qualify all
licensees whose licenses are issued, renewed, or
reissued after this bill takes effect for an exemption
U.S.C. § 922(t)(3)(A) from separate
background checks to purchase a firearm from a
- Requires all licensing fees to be used solely for
administering the concealed weapons licensing
law. Current law gives sheriffs absolute
discretion to spend any surpluses at the end of a
fiscal year for any official purpose. This law
encourages sheriffs to not hire enough staff to
process all applications in a timely manner despite
adequate funds to do so. Unfortunately, in the
most outrageous case of misuse of licensing fees, former
Mercer County Sheriff Danny Wills misappropriated
funds from the Mercer County concealed weapons
license administration fund to finance his personal
drug habit, for which he subsequently pleaded
guilty to a federal charge of obtaining hydrocodone by
misrepresentation, fraud, forgery and subterfuge and went
- Adjusts the expiration and renewal cycle to coincide
with the renewal cycle of driver's licenses (which
expire every 5 years on the licensee's birthday when
the licensee has a birthday evenly divisible by 5). In
addition to making the renewal date easier to
remember, this revised renewal schedule will evenly
distribute application volumes over time and reduce
periodic delays in processing that occur during
periods of peak application activity. This bill will
prorate license fees to correspond to the amount of
time for which a license is issued.
- Automatically extends licenses issued to
servicemembers who are deployed.
- Improves process for appealing denial, suspension,
or revocation of a license.
- Establishes process for appealing suspension or
revocation of license to correspond to process for
appealing denial of license.
- Establishes optional process for informally
petitioning sheriff to reconsider denial,
suspension, or revocation of license before
appealing to circuit court.
- Places burden of proof on sheriff to justify
denial, suspension, or revocation of license by
clear and convincing evidence.
- Requires court to grant a de novo review
to all matters appealed by an applicant or licensee.
- Expands access to appellate process by deferring
filing fees & court costs to conclusion of case
and requiring award of court costs, attorney fees,
and other reasonable costs of litigation to any
person who successfully appeals a denial,
suspension, or revocation of a license.
- Provides optional processes for a licensee to file a
notice of change of name or address, obtain a
replacement license and, when moving to another
county, have his or her license file transferred.
- Reduces license fees for a 5-year license from $90
to $60. $15 of this fee reduction is achieved by
eliminating a surcharge (tax) dedicated to the
Courthouse Facilities Improvement Fund, which has
nothing to do with the administration of concealed
weapons licenses. However, there is an
additional fee for first-time applicants for a Class 1
license to cover fingerprint processing costs (not
required for renewals).
- Improves process of identifying licensees who have
become disqualified from continued licensure and
suspending or revoking those licenses. These
changes will help expand West Virginia's reciprocity
with other states and assist in qualifying West
Virginia for addition to the list
of states whose concealed weapons licensees are exempt
from federal firearm purchase background checks.
- Requires sheriffs to mail renewal notices to all
licensees 60-90 days before a license expires.
- Requires compilation and publication of annual
statistical data concerning concealed weapons
- Requires the Attorney General to annually report to
the Legislature on reciprocity with other states and
the status of West Virginia concealed weapons licenses
as a qualifying alternative to a federal firearm
purchase background check.
- Requires the Attorney General to publish &
annually update a compendium of West Virginia weapons,
self-defense, and use of force laws.
- Closes public access to names, addresses, and other
personally-identifying information of all applicants
& licensees; prohibits the unauthorized
distribution of confidential information; and provides
limited access to certain information by political
party state executive committees or any nonprofit
firearm-related or hunting-related educational or
issue-advocacy organization exempt from federal income
taxation under § 501(c) of the Internal Revenue
Code (such as WVCDL).
- Establishes system of temporary emergency licenses
to provide immediate licensure to individuals who have
developed exigent circumstances, pending completion of
the required training course and normal background
check process for a regular license.
- Makes various administrative improvements not listed
here in greater detail.
- Reforms law governing categories of persons prohibited
from possessing firearms:
- Conforms state law to federal law regarding the
restoration of firearm rights to individuals who have
received a pardon or expungement for a disqualifying
- Unlike federal law, current West Virginia law does
not automatically restore firearm rights to
individuals who have received a pardon or expungement
for a disqualifying crime. Furthermore, the
absolute bar under current §61-7-4
on issuing a concealed weapons license to anyone who
has ever been convicted of a felony, regardless of
whether the person has received a pardon or
expungement, or had civil rights restored, prevents
West Virginia from being able to grant anyone a
restoration of firearm rights that is effective under
- Conforms state law to federal law regarding firearm
disabilities for domestic violence convictions and
- Several recent federal appellate court decisions
have significantly narrowed the scope and
applicability of the Lautenberg amendment, 18
U.S.C. § 922(g)(9).
- However, W.Va.
Code § 61-7-7(a)(8) is written in a
manner that, in light of recent federal case law
developments, places much broader restrictions on
the gun rights of individuals who are no longer
barred by federal law from possessing
firearms. Additionally, W.Va.
Code §§ 48-27-403 and 502 contain
provisions that arguably place greater restrictions
on the ability to possess firearms of a person who
is subject to a domestic violence protective order
U.S.C. § 922(g)(8)--especially with
regard to protective orders obtained by individuals
who do not fall within the narrow relationship
categories covered by 18
U.S.C. § 922(g)(8). These issues
were first brought to WVCDL's attention in 2010
during our successful campaign to defeat HB
4422, which has been reintroduced this year as
- Expands eligibility for relief from firearm
- Establishes standardized process for local chief
law-enforcement official approval of transfer of
National Firearms Act weapons (machine guns,
short-barreled rifles, short-barreled shotguns,
- Reduces & reforms places where carrying is
- Modifies prison contraband statute to apply
prohibition on possession of weapons and other
prohibited materials to the "secure area of a
correctional facility" to which inmates have access
and which are posted with specified signage (the form
of the required sign is identical to but the required
text is different than this exemplar).
The current statute appears to apply to the entire
grounds, including unsecured, publicly-accessible
vehicle parking areas.
- Repeals State Capitol carry ban.
- Reforms prohibition on weapons on school property:
- Completely exempts nonstudent adults who are
licensed to carry concealed weapons. The federal
Gun-Free School Zones Act (18
U.S.C. § 922(q)) and state laws in
Alabama (Ala. Code §13A-11-72(e)),
California (Cal. Penal Code §
626.9(l)), Delaware (Del. Code Title
11, § 1457), New Hampshire (no state
gun-free schools law), Oregon (Ore. Rev. Stat. §
166.370(3)(d)), and Utah (Utah Code
give people licensed to carry concealed weapons a
complete exemption from the prohibitions on carrying
weapons on school property. Many other states
have various provisions either allowing licensed
individuals to leave loaded guns in their cars
without the need to unload before entering school
grounds (current West Virginia law exempts unloaded
guns in cars for anyone) and/or reducing the penalty
for violations of state laws from a felony to a
misdemeanor for licensed individuals.
- Requires posting of specific signage at all public
entrances to school property providing specific
warning of weapons restrictions (the form of the
required sign is identical to but the required text
is different than this exemplar).
- Reduces penalty for violations from a felony to a
misdemeanor except in cases in which a person
committed the violation with the specific intent to
use the weapon in the commission of a crime.
- Eliminates suspension or revocation of a driver's
license as a penalty for misdemeanor violations.
- Reforms courthouse carry ban:
- Limits application of courthouse carry ban to
specific, designated portions of a courthouse that
actually house court offices and which are
designated as a “court security zone” unless a
broader secure restricted access area is established
- Requires free, secure weapon storage areas at all
entrances to areas of a court security zone.
- Requires posting of specific signage at all
entrances to areas of a court security zone where
carrying weapons is prohibited (the form of the
required sign is identical to but the required text
is different than this this exemplar).
- Authorizes all state and local government entities
to designate all or part of any public building as a
secure restricted access area and prohibit possession
of weapons inside restricted area if specified
security measures are maintained, free, secure weapon
storage areas are provided at each entrance to a
restricted area, and specified signage is posted at
all entrances (the form of the required sign is
identical to but the required text is different than
- Reforms wanton endangerment involving a firearm
statute to limit felony charge of wanton endangerment to
cases in which a firearm is discharged. This bill
reverses Syllabus Point 5, State v. Hulbert, 209 W.Va. 217, 544
S.E.2d 919 (2001) (“Because the offense of wanton
endangerment with a firearm is defined, not in terms of
whether the firearm is discharged, but merely with
reference to the commission of ‘any act,’ the discharge
of a firearm is not an element of West Virginia Code
§ 61-7-12.”) (slip opinion available here).
decision effectively eliminated any distinction between
the misdemeanor offense of brandishing and the felony
offense of wanton endangerment when the weapon involved
is a firearm.
- Prescribes new, enhanced criminal penalties for the
unlawful use or possession of firearms during the
commission of felony crimes of violence, felony drug
offenses, certain other drug offenses, and certain other
- Clarifies statute governing private property weapon
- Requires notice of private property owner-imposed
carry restrictions, other than those applicable to a
private residence, to be indicated by specified
- Clarifies requirement of confrontation &
opportunity to cure before carrying weapon in
violation of private property owner-imposed
restriction constitutes a criminal offense, civilly
actionable conduct, or cause for other sanctions.
- Provides immunity to private property owners who
voluntarily refrain from restricting the otherwise
lawful carrying of weapons by individuals licensed to
carry concealed weapons.
- Right to possess and store weapons in vehicles: This
bill prohibits any public or private property owner,
employer, educational institution, or contracting
entity, from restricting or prohibiting the possession
or storage of lawfully-possessed weapons in any private
vehicle. This bill provides immunity from liability for
the acts or omissions of individuals who store weapons
in vehicles as authorized by this section. This
bill provides civil remedies and criminal penalties to
enforce this section.
- Strengthens preemption:
- Eliminates grandfathered municipal ordinances.
- Includes all concealable weapons as well as firearms
- Includes state agencies under preemption.
- Includes under preemption various quasi-governmental
entities that are technically private entities but are
effectively controlled by state or local government
entities based upon either the appointment of officers
or directors or financial support.
- Establishes additional provisions prohibiting direct
or indirect registration of firearms or concealable
- Establishes strong civil remedies and criminal
penalties for preemption violations.
- Provides additional protections to individuals whose
firearms or concealable weapons are seized by a
- Requires weapons temporarily seized during a
law-enforcement contact that were lawfully possessed
to be returned to the person at the conclusion of the
contact in the same condition & configuration
(e.g., if a law-enforcement officer temporarily seized
a loaded handgun, the officer would have to return the
handgun to the person loaded and permit the person to
re-holster it or return it to any other place from
which it was taken).
- Requires law-enforcement agencies that seize and
retain a weapon to maintain its integrity. This
requirement is intended to require seized weapons to
be kept clean and in the same condition as they were
originally taken so that if the weapons are later
returned (either voluntarily or pursuant to a court
order), the weapon will not suffer any loss of
functionality or other value.
- Regulates "gun buy-back" programs and disposition of
firearms by law-enforcement agencies.
- Requires approval of applicable municipal governing
body or county commission before any municipal
police department or county sheriff's department may
participate in any "gun buy-back" program.
- Requires all acquired guns to be examined for
evidence of criminal activity.
- Requires certain efforts to check acquired guns
against records of stolen guns and return of stolen
guns to lawful owner.r
- Requires all guns that are disposed of by any
law-enforcement agency (including guns acquired
through "gun buy-back" programs, forfeited weapons,
and used weapons that are being removed from service)
to be offered for sale to licensed dealers through
public auction or sealed bids.
- Requires award of attorney's fees to successful
litigants in certain cases involving an individual's
right to keep and bear arms, including:
- Appeals of denials, suspensions, or revocations of
concealed weapons licenses.
- Actions to enforce required certification of NFA
- Successful defense against a lawsuit where a private
property owner or employer has immunity for acts or
omissions of individuals lawfully carrying weapons.
- Enforcement of an individual's right to possess and
store weapons in a private vehicle.
- Actions to enforce preemption law.
- Actions to enforce anti-registration law.
- Recovery of unlawfully-seized weapon.
- Compelling compliance with requirement to resell
certain weapons at public sales.
- Certain other actions to enforce an individual's
right to keep and bear arms under either the state
constitution or statutory law.
- Updates language in Central State Mental Health
- Establishes a statute of limitations for most felony
- Establishes a process to set aside and expunge certain
convictions for misdemeanor crimes of domestic violence:
- This bill will enable individuals who have certain
domestic violence-related convictions in West Virginia
to petition the circuit court of the county in which
the conviction occurred to expunge a conviction.
Under federal law, 18
U.S.C. § 921(a)(33)(B)(ii), an expunged
conviction is disregarded for the purposes of
determining whether a person may lawfully possess a
- This bill establishes a sliding scale of
presumptions and burdens of proof based upon the
recency of the conviction and whether the person has
any other domestic violence-related convictions.
- Establishes a process to set aside and expunge certain
convictions for certain acts made lawful by this bill.
- Directly amends various state agency rules previously
approved by the Legislature to eliminate various
restrictions under the Code of State Rules on the
possession or carrying of firearms by private citizens
engaged in various regulated activities.
(At this point, this analysis begins at §55-18-3 and
- Provides qualified immunity from civil liability for
certain firearm safety instructors who provide
instruction in reasonable and accepted firearms safety
principles and techniques.
- Prohibits discrimination against lawful owners of
firearms in adoption proceedings.
- Requires notice to be provided to persons subjected to
guardianship or conservatorship proceedings of the
potential effect of those proceedings on the person's
eligibility to lawfully possess firearms. The
current notice lists certain rights that may be affected
by the proceedings, but the right to possess firearms is
not among them.
- Requires court or mental hygiene commissioner to make
findings regarding whether persons involved in certain
mental health proceedings may lawfully possess firearms
and provide notice of effect of the proceedings on the
individual's ability to lawfully possess firearms.
- Modifies no-discharge zones: This bill would create an
exemption to the areas within which the discharge of
firearms is prohibited to exempt from the prohibition on
discharging a firearm within 500 feet of a dwelling (1)
an occupant of the dwelling if no other homes are
located within 500 feet and (2) any person who has the
written consent of all owners or lessees of homes within
- Reforms various hunting-related statutes governing the
possession or carrying of firearms:
West Virginia's hunting laws (W.Va.
Code §§ 20-2-5, 6, 6a, 19a, 42l, and 46e)
create a confusing system of regulations concerning the
manner in which individuals may carry guns for
self-defense purposes when engaging in outdoor
activities. This bill would clarify the legality
of carrying handguns, either openly or concealed, as it
relates to hunting regulations, and exempt individuals
licensed to carry concealed handguns from certain
regulations on the manner in which rifles and shotguns
must be transported in vehicles or the woods.
These regulations date back to when West Virginia had a
highly restrictive "may issue" license to carry law that
did not distinguish between open and concealed carry and
under which it was virtually impossible for the average
law-abiding citizen to get a license, and thus hunting
was the only reason people could generally carry guns
outside their homes. This statute was declared
unconstitutional in State
ex rel. City of Princeton v. Buckner, 180 W.Va.
457, 377 S.E.2d 139 (1988), and subsequently repealed
and replaced with no requirement of a license for open
carry and a shall -issue law for licenses to carry
For an example of the confusion that exists over these
statutes, see the conflicting advice concerning open
carry in a vehicle of the State
Police (open carry in a vehicle is legal) and the
of Natural Resources (loaded firearms in vehicles
illegal except concealed handguns carried with concealed
handgun license) and the Supreme Court of Appeals's
decision in State ex
rel. West Virginia Div. of Nat. Resources v. Cline,
200 W.Va. 101, 488 S.E.2d 376 (1997) (click here
for majority slip opinion; click
here for Justice Maynard's dissenting slip
- Repeals authorization for municipalities to completely
prohibit the carrying of handguns and other concealable
- Authorizes municipalities to regulate or prohibit the
discharge of firearms.
- Provides all active and retired West Virginia
law-enforcement officers the required certification to
qualify under federal law to carry concealed firearms
- This bill provides active and retired
law-enforcement officers access to the required
training and certification to carry concealed firearms
nationwide pursuant to the federal Law-Enforcement
Officer Safety Act of 2004 (18
U.S.C. § 926B and 18
U.S.C. § 926C). LEOSA permits
qualified law-enforcement officers, whether on or off
duty, and qualified retired law-enforcement officers
who undergo annual training and certification to carry
concealed firearms nationwide notwithstanding state or
- Requires every West Virginia law-enforcement agency
to provide current members and retirees appropriate
- Requires State Police to establish state
certification program for retired law enforcement
officers who reside in West Virginia, regardless of
the agency from which the person retired.
- Provides prosecuting attorneys and assistant
prosecuting attorneys required statutory arrest powers
to qualify under 18
U.S.C. § 926B. The proposed language
merely codifies the current arrest powers all
prosecuting attorneys already have as private citizens
at common law.
- Repeals prohibition on deputy sheriff reserves from
- Makes extensive technical cleanup to various sections
of the code that contain outdated cross-references to
various current or repealed weapons laws.
All gun-related bills that are pending before the
Legislature are posted on WVCDL's Legislative
Contact WVCDL Legislative Director Jim Mullins for
questions or comments.
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