WEST virginia Legislature
2017 regular session
By
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to the Committee on the Judiciary.
A BILL to amend the Code
of West Virginia, 1931, as amended, by adding thereto a new article, designated
§5-30-1, §5-30-2, §5-30-3, §5-30-4 and §5-30-5, all relating to providing that
all future federal, state and local statutes, ordinances, laws, orders, rules,
and any other actions which attempt to restrict, tax, or regulate the
possession, use, discharge in lawful self-defense, transportation, purchase,
acquisition, sale, transfer, ownership, carrying, manufacture, or repair of
firearms, firearm accessories, ammunition and their accouterments are invalid
and unenforceable; making it a felony to attempt to enforce a federal, state or
local statute, ordinance, law, order, rule, or any other action which attempts
to restrict, tax, or regulate possession, use, discharge in lawful
self-defense, transportation, purchase, acquisition, sale, transfer, ownership,
carrying, manufacture, or repair of firearms, firearm accessories, ammunition
or their accouterments; prohibiting such laws, orders, rules, policies and
other actions by executive departments and state agencies, and providing a
felony for violation; providing definitions; making findings; providing
penalties; requiring the Attorney General
to defend citizens of West Virginia who are prosecuted by the United States
government for violation of a federal law relating to the possession, use,
discharge in lawful self-defense, transportation, purchase, acquisition, sale,
transfer, ownership, carrying, manufacture, or repair of a firearm, a firearm
accessory or ammunition; providing exemptions; providing for retroactivity; and
providing that ex post facto laws are not created.
Be it enacted by the
Legislature of West Virginia:
That the Code of West
Virginia, 1931, as amended, be amended by adding thereto a new article,
designated §5-30-1, §5-30-2, §5-30-3, §5-30-4 and §5-30-5, all to read as
follows:
ARTICLE
30. RIGHT TO KEEP AND BEAR ARMS.
§5-30-1. Definitions.
For
purposes of this article:
(1) "Local" is a word that refers
to any county in this state as defined in section one, article one, chapter one
of this code, any municipality, city, town or village as defined in section two
of that article or any consolidated local government, county consolidation and
consolidated county as defined in section three, article one, chapter seven-a
of this code.
(2) "Federal" is a word that refers
to the government of the United States, the Congress of the United States, the
President of the United States, and any executive department or regulatory
agency thereof.
(3) "Executive department
or state agency" is a phrase that means any executive departments defined in
section two, article one, chapter five-f of this code, as well as any state
board, agency, committee, or authority other than the Legislature.
§5-30-2. Legislative findings.
The
Legislature finds that:
(1) The
Second Amendment to the Constitution of the United States provides: “A well-
regulated Militia, being necessary to the security of a free state, the right
of the people to keep and bear arms, shall not be infringed.”
(2)
Section twenty-two, Article III of the Constitution of the State of West
Virginia provides: “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.”
(3) All
federal and local statutes, ordinances, laws, orders, rules, or any other
actions which attempt to restrict, tax, or regulate the possession, use,
discharge in lawful self-defense, transportation, purchase, acquisition, sale,
transfer, ownership, carrying, manufacture, or repair of firearms, firearms
accessories and ammunition violate the Second Amendment to the Constitution of
the United States and Section twenty-two, Article III of the Constitution of
the State of West Virginia.
§5-30-3. Prohibitions on federal and local
infringements on the right to keep and bear arms, firearm accessories and
ammunition; felony; penalty; Attorney General to defend.
(a) All
current and future federal, state, and local statutes, ordinances, laws,
orders, rules, and any other actions which attempt to restrict, tax, or
regulate the possession, use, discharge in lawful self-defense, transportation,
purchase, acquisition, sale, transfer, ownership, carrying, manufacture, or
repair of firearms, firearm accessories, ammunition and their accouterments
contradict the true meaning and original intent of the Second Amendment to the
Constitution of the United States and Section twenty-two, Article III of the Constitution
of the State of West Virginia. Those
statutes, ordinances, laws, orders and rules which violate the Constitution of
the United States and the Constitution of the State of West Virginia are
invalid, and therefore, are null and void.
(b) All
current and future federal, state, and local statutes, ordinances, laws,
orders, rules, and any other actions which attempt to restrict, tax, or
regulate the possession, use, discharge in lawful self-defense, transportation,
purchase, acquisition, sale, transfer, ownership, carrying, manufacture, or
repair of firearms, firearm accessories, ammunition and their accouterments
shall not be recognized by this state and shall not be given any recognition
within the state as they are against public policy. Those federal, state, and local statutes,
ordinances, laws, orders and rules are null and void and of no effect within
this state.
(c) It
is the duty of the State of West Virginia to adopt and enact any and all
measures as may be necessary to prevent the enforcement of any future federal
and local statutes, ordinances, laws, orders, rules, and any other actions in
violation of the Second Amendment to the Constitution of the United States and
Section twenty-two, Article III of the Constitution of the State of West
Virginia and this section.
(d) Any
attempt to enforce any future federal, state, or local statute, ordinance, law,
order, rule, and any other action which attempts to restrict, tax, or regulate
possession, use, discharge in lawful self-defense, transportation, purchase,
acquisition, sale, transfer, ownership, carrying, manufacture, or repair of
firearms, firearm accessories, ammunition or their accouterments within the
State of West Virginia by any official, officer or employee of the United
States government, the government of the State of West Virginia, any county
government, local government, or government of any municipality or any
political subdivision is guilty of a felony and, upon conviction, shall be
confined in a correctional facility not more than two years and fined not more
than $10,000.
(e) The
Attorney General shall defend a citizen of West Virginia who is prosecuted by
the United States Government for violation of a federal law relating to the
possession, use, discharge in lawful self-defense, transportation, purchase,
acquisition, sale, transfer, ownership, carrying, manufacture, or repair of a
firearm, a firearm accessory or ammunition.
§5-30-4. Prohibitions on infringements of the right to
keep and bear arms by executive departments and state agencies; felony;
penalty.
(a) All
future laws, orders, rules, policies and any other actions which attempt to
restrict, tax, or regulate the possession, use, discharge in lawful
self-defense, transportation, purchase, acquisition, sale, transfer, ownership,
carrying, manufacture, or repair of firearms, firearm accessories, ammunition
and their accouterments promulgated by any executive department of the State of
West Virginia without explicit statutory authority shall not be recognized by
this state and shall not be given any recognition within the state as they are
against public policy. Those future
laws, orders, rules, policies and any other actions are null and void and of no
effect within the state.
(b) Any
attempt to enforce any future laws, orders, rules, policies and any other
actions described in subsection (a) of this section by any official, officer or
employee of the United States government, the West Virginia government, any
county government or local government is guilty of a felony and, upon
conviction, shall be confined in a correctional facility for not more than two
years and be assessed a fine of not more than $10,000.
§5-30-5. Exemptions; retroactivity; ex post facto.
(a)
Notwithstanding the provisions of this article, local governments may enact
zoning ordinances to regulate the manufacture of arms and ammunition, pursuant
to chapter eight-a of this code: Provided,
That the regulation does not restrict or hamper the manufacture more than any
other comparable industry within the jurisdiction of the local government.
(b)
Notwithstanding the provisions of this article prohibiting the taxation of
firearms, firearm accessories, ammunition, or their accouterments, it shall not
be unlawful for local governments to tax such goods, provided that such tax is
comparable and common to other goods or commodities available in the
jurisdiction and that the power to impose such a tax is expressly granted by
state law.
(c)
Notwithstanding the provisions of this article, local governments may enact
ordinances, rules and regulations governing the use and or possession of arms
by individuals directly employed as government officials while such individual
is acting within the course and scope of their official duties.
(d)
This article is effective retroactively to January 1, 2017. This article may not be construed so as to
create any ex post facto law.
NOTE: The purpose of this bill is to make all
future federal, state and local statutes, ordinances, laws, orders and rules
concerning firearms, firearm accessories, ammunition and their accouterments
invalid and unenforceable. The bill makes it a felony to attempt to enforce a
federal or local statute, ordinance, law, order or rule concerning firearms,
firearm accessories, ammunition and their accouterments that violate the state
and federal Constitutions. The bill makes legislative findings. The bill
provides criminal penalties. The bill requires the Attorney General to defend
citizens of West Virginia who are prosecuted by the United States Government
for violation of a federal law relating to the manufacture, sale, transfer or
possession of a firearm, a firearm accessory or ammunition. The bill provides
for retroactivity. The bill provides
that ex post facto laws are not created.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.