Debriefing the 2021 WV Legislative Session – Firearms
By Brian Skinner, Esq.
During the 2021 regular session of the West Virginia Legislature, 45 bills and one joint resolution were introduced that involve firearms in one way or another — 17 bills and one joint resolution in the Senate and 28 bills in the House of Delegates.
Of the 45 bills introduced, six were enacted. This article will summarize only those bills enacted during the session, however a list of all firearm-related legislation introduced during the 2021 regular session, organized by topic, can be found below.
My review of the firearm related legislation introduced this session reveals a somewhat curious cataloguing decision by Legislative Services. Several bills which purport to protect the rights of gun owners, such as S.B. 419 (Redefining “firearm” to match federal code), H.B. 2739 (Make WV a 2nd Amendment Sanctuary State) and H.B. 2694 (Create the 2nd Amendment Preservation Act), are categorized under the subject matter “Human Rights.” Apparently, the West Virginia Legislature has now fully embraced the principle that gun rights are indeed human rights.
Synching federal and state firearm definitions
The legislature addressed an inconsistency in way firearms are defined at the federal and state levels in S.B. 419 by amending the definition of “firearm” contained in the state criminal code to synchronize it with the definition of “firearm” contained in the federal criminal code (18 U.S. Code § 921). Under federal law, antique firearms are not considered to be “firearms.” The bill adds this exemption to the state law definition of “firearm.”
An “antique firearm” includes a matchlock, flintlock, percussion cap, or similar type of ignition system, manufactured in or before 1898; or a replica of firearm if it is not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the United States and which is not readily available in the ordinary channels of commercial trade.
Antique firearms include any muzzle loading rifle, muzzle loading shotgun, or muzzle loading pistol, which is designed to use black powder, or a black powder substitute, and which cannot use fixed ammunition.
However, this exemption does not apply to a prohibition on the possession of firearms included in a domestic violence protective order.
The bill completed legislative action on April 9, 2021 and is now awaiting the action of the Governor.
Firearms during a state of emergency
After almost a year of being under a state of emergency because of the COVID-19 pandemic, the legislature acted to broaden the current law prohibiting state or local government from restricting the lawful possession and use of firearms and ammunition during a state of emergency. S.B. 458 adds to and clarifies the current prohibitions by making them applicable to firearm or ammunition components or accessories, ammunition reloading equipment and supplies, and personal weapons other than firearms.
The bill also includes additional proscriptions on government’s ability to restrict firearms, ammunition and firearm components during an emergency by prohibiting the —
- suspension or revocation of a license to carry a concealed deadly weapon or provisional license to carry a concealed deadly weapon except as expressly authorized by law;
- willfully refusal to accept an application for a license to carry a concealed deadly weapon or provisional license to carry a concealed deadly weapon;
- closing or limiting the operating hours of any entity engaged in the lawful selling or servicing of any firearm, including any component or accessory, ammunition, ammunition reloading equipment and supplies, or personal weapons other than firearms, unless the closing or limitation of hours applies generally within the jurisdiction of commerce;
- closing or limiting the operating hours of any indoor or outdoor shooting range; or
- placing restrictions or quantity limitations on any entity regarding the lawful sale or servicing of any firearm or ammunition, any firearm or ammunition component or accessory, ammunition reloading equipment and supplies, or personal weapons other than firearms.
In addition to attorney fees and court costs, a person who prevails in a lawsuit to enforce the law may now recover their actual damages, including consequential damages.
The bill was passed by both chambers on April 9, 2021 and sent to the Governor.
Tax incentives for manufacturers and consumers
The note attached to H.B. 2499 indicates that its intent is to stimulate economic growth in firearm and ammunition manufacturing industries in three ways. First, by amending the definition of manufacturing for purposes of special method for appraising qualified capital additions to manufacturing facilities for property tax purposes.
Second, amending the formula for calculating credit allowed for manufacturing investment to include small arms ammunition manufacturing and small arms, ordinance and ordinance accessories manufacturing by creating the West Virginia Tax Credit for Federal Excise Tax Imposed Upon Small Arms and Ammunition Manufacturers.
Third, exempting sales of small arms and small arms ammunition from state sales and use tax.
However, while the legislature enacted significant tax reductions for the manufacture and sales of firearms and ammunition, it passed on the opportunity to provide a similar sales tax exemption for firearm safe storage products (S.B. 111).
The bill was approved by Governor on April 8, 2021 and will become effective on June 30, 2021.
Enforcement of federal gun laws
Nine bills were introduced this session that purported to save the Second Amendment to the U.S. Constitution from infringement by the federal government. H. B. 2694 enacted the “2nd Amendment Preservation Act” designed to protect West Virginia law enforcement officers, from being directed, through federal executive orders, agency orders, statutes, laws, rules, or regulations in effect on or after the effective date of the law, to violate their oath of office and individual rights affirmed under the Second Amendment to the Constitution for the United States and Article 3, Section 22 of the Constitution of the State of West Virginia.
After passing the House, the bill was heavily amended by the Senate at the prompting of the Senate Judiciary Chairman, Charlie Trump, in response to the significant concerns voiced by members of law enforcement that the House version would essentially halt collaboration between federal and state law enforcement agencies while also imperiling federal funding.
Senator Trump’s amendment focused the bill on what he argued were the real concerns articulated by House supporters of the bill, specifically that state and local law-enforcement personnel would be commandeered by the federal government to enforce federal firearms laws.
Consequently, his amendment prohibits state and local law enforcement from being commandeered by federal law enforcement, and also prohibits state and local law enforcement from —
- participating in the execution of a federal search warrant when the only property sought to be taken and seized under the warrant is firearms, firearms accessories, or ammunition which is lawful for the person, whose premises are to be searched, to possess under the laws of this state;
- participating in the execution of a federal arrest warrant of a citizen of this state or a person subject to the protections of the state constitution and the laws of West Virginia when the federal arrest warrant charges no crime other than the crime of the possession of firearms, firearm accessories, or ammunition which is lawful for the person who is to be arrested under the warrant to possess under the laws of this state;
- enforcing an order under a red flag law against a citizen of this state or a person subject ot [sic] the protections of the laws of this state when the person against whom the order is directed has the lawful right under the laws of this state to possess firearms; or
- arresting or detaining a person who is subject to the protection of the Constitution and laws of this state for the violation of a new inconsistent federal firearms law or inconsistent presidential executive order or action when engaging in a traffic stop or in response to a noise complaint.
In addition to the prohibitions on state and local law enforcement acting to enforce federal firearm laws, the bill deprives West Virginia courts from issuing an order depriving a citizen of this state of his or her right to possess firearms, firearms accessories, or ammunition under any red flag law.
Extreme risk protection orders (ERPO) or “Red flag laws” allow family members or law enforcement to file a petition for a court order to immediately restrict a person’s access to guns for a temporary period of time, because they believe the respondent poses a serious danger of hurting someone with a gun. The tragic rise of mass shootings in the United States has resulted in numerous states adopting such measures to prevent potential threats from access to firearms and ammunition.
Because West Virginia does not have a red flag law, this provision appears to be intended to preempt federal legislation that might be enacted in the future.
While the focus of the bill is prohibiting state and local law enforcement from enforcing gun laws perceived to be inconsistent with state law, the bill also explicitly lists permitted activities that state and local law-enforcement may engage in with its federal counterparts.
The state attorney general is authorized to “commence and prosecute” legal challenges whenever any federal statute, presidential executive order, agency order, federal law, rule, or regulation is determined by the attorney general to infringe upon the right to keep and bear arms affirmed under the Second Amendment to the Constitution of the United States.
The attorney general is also required to publish policies for police departments and agencies providing guidance on resistance to federal commandeering and lawful measures which can be taken by the law-enforcement agencies to protect citizens from the consequences of any attempts or efforts at federal commandeering.
The legislation provides both civil and criminal immunity and employment protections to law-enforcement for refusing to enforce a federal statute, executive order, agency order, rule, or regulation determined by the Attorney General of West Virginia to infringe upon the right to keep and bear arms under the Second Amendment to the Constitution of the United States.
The bill was passed by both chambers and sent to the Governor on the final day of the 2021 regular session.
Non-resident concealed carry permits
Finally, despite that fact that a concealed carry permit is no longer necessary in West Virginia, even for non-residents, H.B. 2793 allows residents of other states to obtain a nonresident state license to carry a concealed deadly weapon. The nonresident state license may be issued by a county sheriff for a fee of $100. Concealed weapons licenses may only be issued for pistols and revolvers.
The non-resident permit may be an attractive option for those with permits issued by another state given West Virginia’s comprehensive reciprocity agreements with other states.
The bill was signed by the Governor on April 9, 2021 and will become effective on July 6, 2021.
Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.
Firearm Legislation by Topic (Bolded bills were enacted)
Castle Doctrine
S.B. 8 – Relating to castle doctrine and self-defense standards
H.B. 2859 – Relating to reasonable force in defense of self, real and personal property
Causes of action
H.B. 2259 – Creating a cause of action for injuries suffered in a gun- free zone
Concealed Carry Permits
H.B. 2793 – Permit out of state residents to obtain West Virginia concealed carry permits
Crime
S.B. 485 – Relating to use or presentation of firearm during commission of felony
Discrimination
S.B. 268 – Prohibiting insurance discrimination against firearms manufacturers
Federal law
S.B. 419 – Redefining “firearm” to match federal code
Firearms in the State Capitol
S.B. 279 – Eliminating restriction to carry firearm on State Capitol Complex grounds
S.B. 650 – Permitting concealed carry in certain areas on State Capitol Complex
H.B. 2275 – Eliminate the restriction to carry a firearm on the state capitol complex grounds.
H.B. 2376 – Allow concealed carry on and in capitol grounds
H.B. 2729 – Permit elected officials to carry firearms in the Capitol
H.B. 2977 – Allow guns to be carried on capitol grounds
Firearms at schools
S.B. 246 – Allowing licensed employees, staff, and students of public universities to carry concealed weapon
S.B. 570 – Creating Campus Self-Defense Act
H.B. 2175 – Removing the permit requirement for a person over 21 to possess a concealed handgun in a motor vehicle on school property
H.B. 2364 – Permit teachers in K-12 schools be authorized to carry concealed firearms as a designated school protection officer
H.B. 2978 – Gun carry allowed on college campuses
H.B. 3022 – The Campus Self Defense Act
Firearms at airports
S.B. 624 – Prohibiting county airport authorities from adopting rules prohibiting possession of firearms in public areas
H.B. 2597 – Prohibiting county airport authorities from making or adopting rules prohibiting possession of firearms in public
Motor vehicles
H.B. 2323 – Authorizing a special vehicle registration plate for “2nd Amendment” enthusiasts
Private military organizations
H.B. 2201 – Repealing the section of code relating to unlawful military organizations
Public Officials
H.B. 3000 – To allow circuit court judges with at least six years of service to conceal carry if they so desire
Sales and possession of firearms during a state of emergency
S.B. 451 – Relating to possession of firearms by individuals during declared state of emergency
S.B. 458 – Relating to possession of firearms by individuals during state of emergency
S.B. 630 – Declaring sale and manufacture of firearms an essential business during declared emergency
Sales taxes
S.B. 111 – Exempting firearm safe storage products from consumers sales tax
S.B. 225 – Creating tax credit for persons who successfully complete firearms safety course
S.B. 575 – Creating tax credit for individuals who complete firearms safety course
H.B. 2042 – Exempting sales of small arms and small arms ammunition from state sales and use taxes
H.B. 2499 – Tax reduction for arms and ammo manufacturing
H.B. 2736 – Provide a sales tax exemption for firearms and firearm ammunition for WV residents
Second Amendment Sanctuary
H.B. 2739 – Make WV a 2nd Amendment Sanctuary State
H.B. 2946 – Second Amendment Sanctuary Act
H.B. 3047 – Make WV a Second Amendment Sanctuary State
Second Amendment Preservation
S.B. 353 – Creating Second Amendment Preservation Act
S.B. 365 – WV Firearms Protection Act
S.J.R. 1 – Protection of the Right to Bear Arms Amendment
H.B. 2159 – WV Firearms Protection Act
H.B. 2197 – West Virginia Firearms Freedom Act
H.B. 2216 – Right to keep and bear arms
H.B. 2537 – Preserving and protecting the right to keep and bear arms
H.B. 2694 – Create the 2nd Amendment Preservation Act
H.B. 2828 – Firearm Protection Act
Storage of firearms
H.B. 2919 – Protect privacy of those who store firearms in WV