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Article III, § 22 of the Constitution of West Virginia, which was approved by the voters on November 4, 1986, states: "A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use."
In State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139, 144-45 (W. Va. 1988), the West Virginia Supreme Court of Appeals (the state’s highest court) held that a state statute universally requiring a license in order to carry a deadly weapon violated art. III, § 22, because it infringed on the ability to "keep and bear arms" for defensive purposes. Importantly, however, the court also held that the "right to keep and bear arms" under art. III, § 22 "is not unlimited," and must be balanced with the "State's duty, under it [sic] police power, to make reasonable regulations for the purpose of protecting the health, safety and welfare of its citizens." Buckner, 377 S.E.2d at 148-49.
In State v. Daniel, 391 S.E.2d 90 (W.Va. 1990), the supreme court of appeals held that a statute prohibiting persons from brandishing or using weapons in a manner that causes or threatens a breach of the peace was a valid exercise of the police power. The court found that art. III, § 22 does not give a "citizen the right to use [a] weapon unlawfully." Thus, the claim that the statute violated appellant’s rights under art. III, § 22 was "without merit." Daniel, 391 S.E.2d at 97.
In In re Metheney, 391 S.E.2d 635, 637-38 (W.Va. 1990) (overruled on other grounds in In re Dailey, 465 S.E.2d 601, 609 (W.Va. 1995)), the supreme court of appeals rejected an art. III, § 22 challenge to a statute permitting only qualified citizens to obtain a license to carry a concealed weapon. See also In re Dailey, 465 S.E.2d at 613 (Workman, J., concurring) ("nothing in our opinion precludes the Legislature from expanding on the requirements of the law for a license to carry a concealed weapon").
In State ex rel. West Virginia Div. of Natural Resources v. Cline, 488 S.E.2d 376 (W.Va. 1997), the supreme court of appeals held that a statute prohibiting the transportation of loaded firearms in vehicles and other conveyances was a legitimate and reasonable exercise of the police power and did not violate art. III, § 22. The court found the state restriction reasonable because it did not infringe upon a sportsperson's ability to possess firearms for hunting purposes, but merely regulated the manner in which firearms may be transported for such purposes. Cline, 488 S.E.2d at 382.
In Rohrbaugh v. State of West Virginia, 607 S.E.2d 404, 412-14 (W.Va. 2004), the supreme court of appeals rejected an art. III, § 22 challenge to a statute prohibiting a convicted felony sexual offender from regaining the ability to possess a firearm. The court held that the statutory restrictions were a "proper exercise of the Legislature’s police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms." Rohrbaugh, 607 S.E.2d at 414.
In Hartley Hill Hunt Club v. County Comm’n, 647 S.E.2d 818 (W.Va. 2007), the supreme court of appeals rejected an art. III, § 22 challenge to a statute prohibiting hunting on public land on Sundays, and allowing counties to hold an election to determine whether to prohibit hunting on private land. The court concluded that art. III, § 22 preserves the state’s right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful. Hartley Hill, 647 S.E.2d at 824-825.
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West Virginia Code § 8-12-5a provides:
[N]either a municipality nor the
governing body of any municipality may limit the right of any person
to purchase, possess, transfer, own, carry, transport, sell or store
any revolver, pistol, rifle or shotgun or any ammunition or ammunition
components to be used therewith nor to so regulate the keeping of
gunpowder so as to directly or indirectly prohibit the ownership of
the ammunition. Nothing herein shall in any way impair the authority
of any municipality, or the governing body thereof, to enact any
ordinance or resolution respecting the power to arrest, convict and
punish any individual under the provisions of [section 8-12-5(16)] or
from enforcing any such ordinance or resolution: Provided, That any
municipal ordinance in place as of [June 1, 1999] shall be excepted
from the provisions of this section: Provided, however, That no
provision in this section may be construed to limit the authority of a
municipality to restrict the commercial use of real estate in
designated areas through planning or zoning ordinances.
Section 8-12-5(16) states:
In addition to the powers and authority granted by (i) The constitution of this state; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing … every municipality and the governing body thereof shall have the plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon … to arrest, convict and punish any individual for carrying about his or her person any revolver, pistol or other dangerous weapon.
There are no cases interpreting sections 8-12-5(16) or 8-12-5a.
Section 7-1-3, which lists the powers of county commissions, provides in part:
The county commission may not limit the right of any person to purchase, possess, transfer, own, carry, transport, sell or store any revolver, pistol, rifle or shotgun or any ammunition or ammunition components to be used therewith nor to so regulate the keeping of gunpowder so as to, directly or indirectly, prohibit the ownership of the ammunition: Provided, That no provision in this section may be construed to limit the authority of a county to restrict the commercial use of real estate in designated areas through planning or zoning ordinances.
See the Immunity Statutes / Manufacturer Litigation section below for information regarding lawsuits by local governments against the gun industry.
Please see the Preemption summary for a general discussion of this issue, as well as the Federal Preemption section of the Federal Law Summary page.
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For general information on each policy, click the heading for that policy. Please note that many firearm-related laws have exceptions for military and law enforcement personnel.
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No relevant statutes exist. State administrative regulations govern the possession of certain kinds of ammunition while hunting certain kinds of animals. See, e.g., W. Va. Code R. § 58-47-3.7. State administrative regulations also govern the storage of ammunition in foster and adoptive homes (section 78-02-15.6), and family child care facilities and homes (sections 78-18-18.3.d, 78-19-7.3.d, 78-20-7.3.c). |
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No relevant statutes currently exist.
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Federal law
generally requires that licensed firearms dealers conduct a
background check on all prospective firearms purchasers to ensure
that such persons are not prohibited from buying or possessing a
firearm. This background check requirement and the National
Instant Criminal Background Check System (“NICS”) were enacted
through the Brady Handgun Violence Prevention Act, pursuant to
Public Law 103-159, and codified at 18 U.S.C. § 921 et seq. Federal law defines a
number of classes of prohibited purchasers (including felons,
fugitives, persons adjudicated as “mental defectives” or those
committed to mental institutions), and leaves to the states the
power to determine additional classes. (For a complete list of
federally prohibited purchasers, click
here.)
Under the
Brady Act, states have the option of serving as a “state point of
contact” and conducting their own background checks using NICS
and state informational records and databases, or having the
checks performed by the FBI using only NICS. Federal law does
not require that private sellers (persons other than firearms
dealers) conduct background checks on prospective purchasers.
In West
Virginia, all firearms transfers by licensed dealers are
processed directly through the FBI, which enforces the federal
purchaser prohibitions referenced above. Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (November 2006). In addition,
West Virginia has adopted other classes of prohibited persons,
and incorporated some of the federal prohibitions as state
offenses. West Virginia Code § 61-7-7(a) provides that, subject to certain limited exceptions, no person
shall possess a firearm if he or she:
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Has been convicted in any court of a crime
punishable by imprisonment for a term exceeding one year;
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Is habitually addicted to alcohol;
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Is an unlawful user of or habitually addicted to any controlled substance;
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Has been adjudicated as a mental defective (defined by section 61-7A-2(1) to mean determined by a duly authorized court, tribunal, board or other entity to be mentally ill to the point where he or she had been found to be incompetent to stand trial due to mental illness or insanity, has been found not guilty in a criminal proceeding by reason of mental illness or insanity or has been determined to be unable to handle his or her own affairs due to mental illness or insanity);
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Has been involuntarily committed to a mental institution (defined by section 61-7A-2(2) to mean involuntarily committed for treatment pursuant to Chapter 27 of the West Virginia Code);
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Is an illegal alien or otherwise unlawfully in the
United States;
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Has been discharged from the armed forces under
dishonorable conditions;
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Has been convicted of a misdemeanor offense of assault or battery under section 61-2-28 (domestic assault or domestic battery) or section 61-2-9(b) or (c) (assault or battery) (or has been convicted of a comparable misdemeanor crime of domestic violence in any jurisdiction) in which the victim was a: 1) current or former spouse; 2) current or former sexual or intimate partner; 3) person with whom the defendant has a child in common; 4) person with whom the defendant cohabits or has cohabited; 5) a parent or guardian; 6) the defendant’s child or ward; or 7) a member of the defendant’s household at the time of the offense; or
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Is subject to a domestic violence protective order
issued after a hearing that restrains such person from harassing,
stalking or threatening an intimate partner of such person or
that intimate partner’s child, or engaging in other conduct that
would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and that either includes a
finding that the person represents a credible threat to the
physical safety of such intimate partner or child, or by its
terms explicitly prohibits the use, attempted use or threatened
use of physical force against the intimate partner or child that
would reasonably be expected to cause bodily injury.
Any person who violates the provisions of section 61-7-7(a) is criminally liable for a misdemeanor. Id. Any person who knowingly sells, rents, gives or lends, or, where the person is other than a natural person, knowingly permits an employee thereof to knowingly sell, rent, give or lend any deadly weapon to a prohibited purchaser/possessor is criminally liable for a felony. Section 61-7-10(b).
West Virginia allows any of the prohibited purchasers listed above to petition the circuit court of the county in which he or she resides to regain the eligibility to possess a firearm. Section 61-7-7(c). However, in 2008, West Virginia enacted a law specifically allowing persons prohibited from possessing a firearm for mental health reasons to regain their firearm eligibility. 2008 W. Va. Acts ch. 55, 2008 W. Va. SB 185. Any person prohibited from possessing a firearm pursuant to section 61-7-7 or federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to Chapter 27 of the West Virginia Code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm. Section 61-7A-5. If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm, the court may enter an order allowing the petitioner to possess a firearm. Id.
Firearms transfers by private sellers (non-firearms dealers)
are not subject to background checks in West Virginia, although federal and state
purchaser prohibitions still apply. See the
West Virginia Private/Secondary Sales
section.
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No relevant statutes currently exist.
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Possession Restrictions
West Virginia generally allows persons to possess firearms in their home, on their property or at their place of business without possessing a license to carry a concealed deadly weapon. W. Va. Code § 61-7-6(1).
Subject to limited exceptions, no person may possess any firearm or other deadly weapon on any school bus “or in or on any public or private primary or secondary education building, structure, facility or grounds thereof, including any vocational education building, structure, facility or grounds thereof where secondary vocational education programs are conducted or at any school-sponsored function.” Section 61-7-11a(b)(1).
No person may possess any firearm or any other deadly weapon on any site that houses a court of law or in the offices of a family law master. Section 61-7-11a(g)(1), (h)(1). It is also unlawful to bring any weapon upon the state capitol complex. Section 61-6-19.
Any owner, lessee or other person charged with the care, custody and control of real property may prohibit the carrying, openly or concealed, of any firearm or deadly weapon on property under his or her domain. Section 61-7-14. Any firearms possessor who refuses to temporarily relinquish possession of his or her firearm on such premises or who refuses to leave such premises, after being requested to do so, is criminally liable for a misdemeanor. Id.
A state administrative regulation prohibits uncased firearms in state parks, state forests, and state wildlife management areas, and on state trails, with certain exceptions. W. Va. Code R. § 58-31-2.14. Another regulation prohibits a residential child care and treatment facility for children and transitioning adults from maintaining a firearm on the grounds or within the structure of the facility. Section 78-03-12.5.c. A group residential facility may not allow a staff member, child, or security guard patrolling the grounds and structures of the facility to possess a firearm there. Section 78-03-42. State administrative regulations also prohibit firearms in:
If concealed weapons license holders are subject to additional location limits, those limits are listed in the Location Limits subsection below.
Transportation of Firearms
A person may carry any firearm, unloaded, from the place of purchase to his or her home, residence or place of business, or to a place of repair and back to his or her home, residence or place of business without a license. W. Va. Code § 61-7-6(1). A person may also possess a firearm while lawfully hunting or while traveling from his or her home, residence or place of business to a hunting site and returning to his or her home, residence or place of business. Id.
West Virginia generally prohibits any person from possessing a loaded firearm or a firearm containing a magazine from which all of the shells or cartridges have not been removed, while in or on any vehicle or conveyance. Section 20-2-5(9).
Any member of a properly organized target-shooting club authorized by law to obtain firearms for the purpose of target practice may carry any unloaded pistol for use in target practice from his or her home, residence or place of business to a place of target practice and from any place of target practice back to his or her home, residence or place of business. Section 61-7-6(2).
West Virginia prohibits firearms on school buses. Section 61-7-11a(b)(1); W. Va. Code R. § 126-092-2-2.1 (Policy and Procedures Manual 13.17.4).
Concealed Weapons Licensing Requirements
West Virginia is a “shall issue” state, meaning that local law enforcement must issue a concealed deadly weapon license if the applicant meets certain qualifications. Any person wishing to obtain a concealed deadly weapon license must apply to the sheriff of his or her county pursuant to W. Va. Code § 61-7-4, and shall be issued a license if the applicant:
Is a bona fide resident of the county in which the application is made and has valid state-issued photo identification showing such residence; Is 21 years of age or older (or is 18 years of age
or older if he or she is required to carry a concealed weapon as a
condition of employment); Is not addicted to alcohol or a controlled substance
or drug, and is not “an unlawful user thereof;” Has not been convicted of a felony or an act of
violence involving the misuse of a deadly weapon; -
Has not been convicted of a misdemeanor offense of assault or battery
under section 61-2-28 (domestic assault or domestic battery) or section 61-2-9(b) or (c) (assault or battery) (or has not been convicted of a misdemeanor offense
with similar essential elements of these crimes in another
jurisdiction outside West Virginia) in which the victim was
a: 1) current or former
spouse; 2) current or former sexual or intimate partner; 3)
person with whom the defendant has a child in common; 4) person
with whom the defendant
cohabits or has cohabited; 5) a parent or guardian; 6) defendant’s child
or ward; or 7) member of the defendant’s household at the time of the
offense;
Is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision imposed by a court of any jurisdiction, or is the subject of an emergency or temporary domestic violence protective order, or is the subject of a final domestic violence protective order entered by a court of any jurisdiction; Is physically and mentally competent to carry such
weapons; Has not been adjudicated mentally incompetent; and -
Has completed a training course in the handling and
firing of a handgun, such as one listed under section
61-7-4(d).
Concealed weapons permits may only be issued for pistols or revolvers. Section 61-7-4(a). The application fee is $75. Section 61-7-4(a). In addition, before any approved license may be issued or become effective, the licensee must pay to the issuing sheriff a $15 fee, to be forwarded to the Superintendent of the West Virginia State Police ("Superintendent"). Section 61-7-4(g).
Additional application and background check requirements are detailed under section 61-7-4. License revocation information is outlined in section 61-7-5.
Any person who carries a concealed deadly weapon without a state license or other authorization provided by statute is criminally liable for a misdemeanor. Section 61-7-3.
Disclosure or Use of Information
The issuing sheriff is required to furnish the Superintendent
with a certified copy of any approved license applications and,
when requested, a certified list of all licenses issued in the
county. Section
61-7-4(m). The Superintendent shall maintain a registry of
all persons who have been issued concealed weapons licenses. Id.
Duration & Renewal
A West Virginia concealed deadly weapons license is valid for five years. Section 61-7-4(g). Renewal applicants are not required to complete a training course in the handling and firing of a handgun if the applicant previously completed such a course. Section 61-7-4(a)(10).
Location Limits
Concealed deadly weapons licensees are subject to all of the generally applicable possession prohibitions listed under the Possession Restrictions and Transportation of Firearms sections above.
Reciprocity
West Virginia exempts from its prohibition against carrying concealed deadly weapons without a license residents of other states that have been issued licenses to carry concealed weapons where that state has entered into a reciprocity agreement with West Virginia, subject to the limitations of section 61-7-6a. Section 61-7-6(7). Section 61-7-6a requires the holder of an out-of-state permit to:
Be a resident of the issuing state and not of West Virginia; Be 21 years of age or older; and Have the permit or license in his or her immediate possession.
The West Virginia attorney general may execute reciprocity agreements with another state if:
The standards for issuing a concealed handgun license or permit in the other state are equal to or greater than the standards in West Virginia; West Virginia’s law enforcement officers have continuous access to data bases on the criminal information network, 24 hours per day, seven days per week, to verify the continued validity of the out-of-state license or permit; The other state grants the right to carry a concealed handgun to residents of West Virginia who have valid West Virginia concealed deadly weapons licenses; and The state agrees to apprise West Virginia of changes in its permitting standards and requirements.
Section 61-7-6a(d). Every 12 months, the attorney general must inquire of the concealed handgun permitting authorities in each other state whether a West Virginia concealed weapons licensee may carry a concealed handgun in their state. Section 61-7-6a(f).
Brady Exemption
Concealed weapons permit holders in West Virginia are not exempt from background checks when purchasing a firearm, according to the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) chart that outlines those permits that qualify as alternatives to the federal Brady Act. Please note that ATF’s exempt status determination for a given state is subject to change without notice.
Under federal law, persons who have been issued state permits to purchase or possess firearms are exempt from background checks if those permits were issued: 1) within the previous five years in the state in which the transfer is to take place; and 2) after an authorized government official has conducted a background investigation, including a search of the NICS database, to verify that possession of a firearm would not be unlawful. 18 U.S.C. § 922(t)(3), 27 C.F.R. § 478.102(d).
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West Virginia has no statute that directly penalizes persons who allow a child access to a firearm. However, West Virginia obligates any parent, guardian or custodian of a child less than 18 years of age, who knows that the child is in possession of a firearm or any other deadly weapon in or on any property of a public or private primary or secondary education institution in violation of W. Va. Code § 61-7-11a(b)(1), or who has reasonable cause to believe that such a violation is imminent, to immediately report knowledge or belief of the possession violation to the appropriate school or law-enforcement officials. Section 61-7-11a(f)(1).
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West Virginia does not license firearms dealers. However, firearms dealers are subject to state laws governing gun sales generally. See the West Virginia Private/Secondary Sales section for further information.
West Virginia prohibits any person from publicly displaying or offering for sale or rent any firearm or ammunition where a passerby on a street, road or alley can see it. W. Va. Code § 61-7-10(a)(1). In addition, no person may knowingly sell, rent, give or lend any deadly weapon to a prohibited purchaser. Section 61-7-10(b)(1).
Pursuant to the Brady Act, federally licensed firearms dealers must conduct background checks on prospective purchasers each time the dealer transfers a firearm. See the West Virginia Background Checks section.
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There are 904 federally licensed firearms dealers and pawnbrokers in West Virginia. Federal firearms licensee totals for West Virginia as of November 8, 2007 were provided by the U.S. Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives.
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Firearm Prohibitions for Domestic Violence Misdemeanants
No person may possess a firearm who has been convicted of a misdemeanor offense of assault or battery under W. Va. Code § 61-2-28 (domestic assault or domestic battery) or section 61-2-9(b) or (c) (assault or battery) if the victim was:
A current or former spouse; A current or former sexual or intimate partner; A person with whom the defendant has a child in common; A person with whom the defendant cohabits or has cohabited; A parent or guardian; The defendant’s child or ward; or A member of the defendant’s household at the time of the offense.
Section 61-7-7(a)(8).
According to the Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (November 2006), West Virginia domestic violence misdemeanor convictions may be found within criminal history records.
Firearm Prohibitions for Persons Subject to Domestic Violence Protective Orders
No person may possess a firearm who is subject to a domestic violence protective order that:
Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate; Restrains such person from harassing, stalking or threatening an intimate partner or such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and Either includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child, or by its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.
W. Va. Code § 61-7-7(a)(7). Section 48-27-403(a) provides that upon the filing of a petition for a protective order, the magistrate court may enter an emergency protective order ex parte (without notice and a hearing) upon good cause shown. If the court enters an emergency protective order, the order shall prohibit the respondent from possessing firearms. Id.
A petition for a domestic violence protective order may be filed by:
A person seeking relief for himself or herself for “domestic violence;” An adult family or household member for the protection of the victim or any family or household member who is a minor child or physically or mentally incapacitated; or A person who reported or was witness to domestic violence and who as a result has been abused, threatened, harassed or been the subject of other actions intended to intimidate the person.
Section 48-27-305. “Domestic violence” means certain acts of violence between “family or household members.” Section 48-27-202. “Family or household members” means persons who:
Are or were married to each other; Are or were living together as spouses; Are or were sexual or intimate partners; Are or were dating, provided that a casual acquaintance or ordinary fraternization between persons in a business or social context does not establish a dating relationship; Are or were residing together in the same household; or Have a child in common regardless of whether they have ever married or lived together.
Section 48-27-204. In addition, a person is a “family or household member” to another person if he or she is to that person or to that person’s family or household member a:
Parent, stepparent; Brother, sister, half-brother, half-sister, stepbrother, stepsister; Father-in-law, mother-in-law, stepfather-in-law, stepmother-in-law; Child, stepchild, daughter-in-law, son-in-law, stepdaughter-in-law, stepson-in-law; Grandparent, step grandparent; Aunt, aunt-in-law, step aunt, uncle, uncle-in-law, step uncle; Niece, nephew, or first or second cousin.
Id.
According to the Bureau of Justice Statistics Survey of State Procedures Related to Firearm Sales, 2005 (November 2006), a registry of West Virginia domestic violence protective orders is being developed.
For general information on the background check process and categories of prohibited purchasers/possessors, see the West Virginia Background Checks section.
Removal or Surrender of Firearms at the Scene of a Domestic Violence Incident
Whenever any person is arrested pursuant to West Virginia Code Chapter 48, Article 27 (Prevention and Treatment of Domestic Violence), the arresting officer must seize all weapons that are alleged to have been involved or threatened to be used in the commission of domestic violence, and may seize a weapon that is in plain view of the officer or was discovered pursuant to a consensual search, as necessary for the protection of the officer or other persons. W. Va. Code § 48-27-1002(e); W. Va. Code R. § 149-3-7.8. |
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No relevant statutes currently exist.
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West Virginia Code § 55-18-1 provides:
The Legislature hereby finds and declares:
(a) The lawful design, marketing, manufacture or sale of firearms or ammunition to the public is not an unreasonably dangerous activity and does not constitute a nuisance per se;
(b) To the extent the Constitution of this state and the United States protect citizens' rights to keep and bear arms, the Legislature finds and declares that it is within the strict prerogative of its own authority, and not the authority of any county or municipality, to determine whether any manufacturer, dealer or seller of firearms has engaged in any act or omission that would create a cognizable action for damages, injunction or otherwise.
Section 55-18-2 provides that:
The authority to bring suit and the right to recover against any firearms or ammunition manufacturer, seller, trade association or dealer of firearms by or on behalf of any county or municipality in this state for damages, abatement or injunctive relief resulting from or relating to the design, manufacture, marketing, or sale of firearms or ammunition to the public is reserved exclusively to the state: Provided, That nothing contained in this article may prohibit a county or municipality from bringing an action for breach of contract or warranty as to firearms or ammunition purchased by the county or municipality.
A person may not maintain a nuisance action for noise against a shooting range located in the vicinity of that person’s property if the range was established when the person acquired the property. Section 61-6-23(b). If there is a substantial change in use of the range after the person acquires the property, the person may maintain a nuisance action if the action is brought within two years from the beginning of the substantial change. Id. A person who owns property in the vicinity of a shooting range that was established after the person acquired the property may maintain a nuisance action for noise against the range only if the action is brought within four years after establishment of the range or two years after a substantial change in use of the range. Section 61-6-23(c). If there has been no shooting activity at a range for two years, resumption of shooting is considered establishment of a new range. Section 61-6-23(d).
For detailed information about government and private party lawsuits against the gun industry, the status of litigation involving gun industry immunity statutes in various states, or pending gun industry immunity legislation, visit the Brady Center's Legal Action Project and the Coalition to Stop Gun Violence's Gun Industry Immunity page.
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West Virginia does not specifically regulate junk guns or unsafe firearms. However, according to research conducted by the Center to Prevent Handgun Violence (now Brady Campaign to Prevent Gun Violence), West Virginia’s Attorney General may have the authority to regulate junk guns, as well as promulgate other firearms safety standards, pursuant to the West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A-6-101—46A-6-110. For details, view the Center’s report, "Targeting Safety."
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No relevant statutes currently exist.
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No relevant statutes currently exist.
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No relevant statutes currently exist. State administrative regulations govern the storage of firearms in:
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Federal law prohibits any person from selling or otherwise transferring a firearm or ammunition to any person who has been “adjudicated as a mental defective” or “committed to any mental institution.” 18 U.S.C. § 922(d)(4). No federal law requires states to report the identities of these individuals to the National Instant Criminal Background Check System (NICS) database, which the FBI uses to perform background checks prior to firearm transfers.
On March 20, 2008, the West Virginia governor signed into law a bill requiring the creation of a central state mental health registry. 2008 W. Va. Acts ch. 55, 2008 W. Va. SB 185. By January 1, 2010, this registry must contain the name, address at the time of commitment or adjudication, date of birth, date of commitment or adjudication and any other identifying characteristics of all persons who have been adjudicated to be mentally defective or who have been committed for treatment of a mental illness pursuant to Chapter 27 of the West Virginia Code. W. Va. Code § 61-7A-3(d), (f). The Secretary of Department of Health and Human Resources and the circuit clerk of each county must, as soon as practicable after the effective date of the law (June 4, 2008), provide this information to the Superintendent of the West Virginia State Police for inclusion in the registry, and must on an ongoing basis continue to provide such information as it is developed. Section 61-7A-3(c). Under no circumstances may the registry contain information relating to any diagnosis or treatment provided. Section 61-7A-3(f). The Superintendent and the Secretary, or their designees, must cooperate with the circuit clerk of each county and Administrator of the West Virginia Supreme Court of Appeals in compiling and maintaining this database, which must be maintained by the Administrator or the Superintendent. Section 61-7A-3(a).
Although there is no law in West Virginia requiring the reporting of mental health information to NICS, according to the new law, information in the registry “may be transmitted” to NICS, as well as to county sheriffs. Section 61-7A-3(b). Notwithstanding any provision of the West Virginia Code, the Superintendent, the Secretary, the circuit clerks and the Administrator may provide notice to the registry and NICS that a person:
Has been involuntarily committed pursuant to Chapter 27 of the West Virginia Code; or Has been adjudicated mentally incompetent in a proceeding under Article 6A of Chapter 61 of the West Virginia Code; or Has regained the ability to possess a firearm by order of a circuit court in a proceeding under section 61-7A-5.
Section 61-7A-4. The registry must provide only such information about a person on the registry as is necessary to identify registrants. Section 61-7A-3(e).
The circuit clerk shall provide the Superintendent or his or her designee with a certified copy of any order entered pursuant to section 61-7A-5 restoring a person's eligibility to possess a firearm, and, petitioner's name shall be promptly removed from the central state mental health registry and the Superintendent shall forthwith inform the Federal Bureau of Investigation or other federal entity operating NICS of the court action. Section 61-7A-5(b).
Section 27-3-1 provides generally that communications and information obtained in the course of treatment or evaluation of any client or patient are confidential information that shall not be disclosed. The 2008 law creates an exception allowing notice to NICS in accordance with section 61-7A-1 et seq.
For general information on the background check process and categories of prohibited purchasers/possessors, see the West Virginia Background Checks section.
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Any person under age 18, who is not married or otherwise emancipated, may not possess any deadly weapon (defined by W. Va. Code § 61-7-2(9) to include, but not be limited to, any pistol or revolver). Section 61-7-8. However, under certain circumstances, it is permissible for a person under age 18 to carry a deadly weapon, including a concealable firearm, when the weapon is possessed on private property with the permission of the person's parent or guardian and of the owner of the property, or when the possession is pursuant to lawful hunting, or when traveling between sites where the person may lawfully possess such a weapon. Id.
An applicant for a concealed deadly weapons permit must be 21 years of age or older (or 18 years of age or older if he or she is required to carry a concealed weapon as a condition of employment). Section 61-7-4(a)(3).
Federal law generally prohibits the possession of a handgun or handgun ammunition by anyone under the age of 18. 18 U.S.C. § 922(x)(2), (3) and (5). Federal law also prohibits firearms dealers from selling or delivering a shotgun or rifle, or ammunition for a shotgun or rifle, to any person the dealer knows or has reasonable cause to believe is under the age of 18. 18 U.S.C. § 922(b)(1), (c)(1). Dealers are prohibited from selling or delivering other firearms (e.g., handguns) or ammunition for those firearms to any person the dealer knows or has reasonable cause to believe is under the age of 21. Id.
Federal law provides less stringent age restrictions with respect to sales by unlicensed persons. Unlicensed persons generally may not sell, deliver or otherwise transfer a handgun or handgun ammunition to any person the transferor knows or has reasonable cause to believe is under the age of 18. 18 U.S.C. § 922(x)(1), (3) and (5). Federal law provides no age limitations with respect to the sale of a long gun by an unlicensed person.
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No relevant statutes currently exist.
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No relevant statutes currently exist.
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Private firearms transfers (i.e., transfers by non-firearms
dealers) are not subject to a background check requirement in
West Virginia, although federal and state purchaser prohibitions
still apply. See the West Virginia Background Checks section. No person may knowingly sell, rent, give or lend any deadly weapon to a prohibited purchaser. W. Va. Code § 61-7-10(b)(1).
West Virginia prohibits any person from publicly displaying or offering for sale or rent any firearm or ammunition where a passerby on a street, road or alley can see it. Section 61-7-10(a)(1).
Moreover, any person who gives or sells to any patient legally committed
to a state hospital, whether on the hospital premises or
elsewhere, any firearm, is criminally liable for a misdemeanor. Section 27-12-3.
Finally, any person who gives or sells, or aids or abets any other person to
give or sell, to any young person in a state youth correctional
facility, whether on the premises of such institution or
otherwise, any firearm, is criminally liable for a misdemeanor. Section 28-1-8.
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No relevant statutes currently exist.
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No relevant statutes currently exist. |
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No relevant statutes currently exist.
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