FLOOR BOOK MEMO House Committee on the Judiciary
Com. Sub. for H.B. 2760
Prepared by: Robert Williams
(3/6/2013) Phone: 304-325-3215
email: robert.williams@wvhouse.gov
SPONSORS: Delegates R. Phillips, Eldridge, Miley, Boggs, White, Marcum, Stowers, O’Neal, Hartman, Hamilton, and Tomblin.
TITLE: Creating a uniform regulation of firearms, ammunition, and firearm accessories.
DATE INTRODUCED: February 28, 2013
CODE SECTIONS AFFECTED: W.Va. Code §7-1-3 & §8-12-5 (amend); §8-12-5a (repeal); §61-7B-1, §61-7B-2, §61-7B-3, §61-7B-4, §61-7B-5, and §61-7B-6 (New).
IDENTICAL/SIMILAR BILLS: HB 2465, HB 2504, HB 2558 and SB 142.
SUMMARY ANALYSIS: The purpose of this bill is to create a uniform regulation of firearms, ammunition, and firearm accessories throughout West Virginia solely determined by the Legislature. It states legislative intent; provides definitions; establishes general rules relating to the regulation of firearms, ammunition and firearm accessories; provides remedies for unlawful regulation; and provides for exceptions. The bill removes references to regulation of firearms by counties and municipalities. It also voids and nullifies the effectiveness of any previously grandfathered gun or firearm regulation enacted by a county or municipality which is contrary to or not expressly authorized in the state code.
FULL ANALYSIS:
I. SUBSTANTIVE ANALYSIS
A. EXISTING LAW:
Pursuant to West Virginia Code §7-1-3, a 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 regulate the keeping of gunpowder in a manner which directly or indirectly prohibits the ownership of ammunition. Counties still have the authority to restrict the commercial use of real estate in designated areas though planning and zoning ordinances.
The general powers and authority granted to municipalities under West Virginia Code §8-12-5 presently includes the specific authority to adopt resolutions and ordinances to :
1. Regulate the keeping of gunpowder, and
2. Arrest, convict and punish any individual for carrying a revolver or other pistol.
As amended and ratified on November 4, 1986, Article III, §22 of the West Virginia Constitution provides that 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.
Even after the adoption of the constitutional amendment, the WV Supreme Court of Appeals recognized that the West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of the state, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed Article III, §22 of the WV Constitution, known as the “Right to Keep and Bear Arms Amendment”.
After the adoption of the Right to Keep and Bear Arms Amendment, the West Virginia Legislature adopted West Virginia Code §8-12-5a. In that section, the Legislature restricted the ability of municipalities to enact gun ordinances or regulate the carrying and sale of firearms and ammunition. However, the City grandfathered the effectiveness of municipal ordinances which were in effect at the time West Virginia Code §8-12-5a became effective. That section became effective on June 9, 1982, and was subsequently amended, effective June 1, 1999.
In pertinent part, West Virginia Code §8-12-5a provides as follows:
§8-12-5a. Limitations upon municipalities' power to restrict the purchase, possession, transfer, ownership, carrying, transport, sale and storage of certain weapons and ammunition.
The provisions of section five of this article notwithstanding, neither 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 subdivision (16), section five of this article or from enforcing any such ordinance or resolution: Provided, That any municipal ordinance in place as of the effective date of this section 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.
At the time West Virginia Code §8-12-5a was enacted, a number of cities had adopted local ordinances which pertained to the sale and carrying of firearms which were grandfathered and remain in effect to this day.
Those grandfathered municipal ordinances include the following:
1. Charleston City Code §18-421 through 18-428, which imposes a 72 hour waiting period on the purchase of handguns, and limits an individual from purchasing more than one handgun within a 30 day period.
2. Charleston WV Local Ordinance §78-165, which prohibits the carrying of weapons on municipal public property, including city hall, the municipal auditorium, the charleston civic center, and all city parks and recreation buildings and facilities, with the exception of city, county, state and federal law enrcerment officers, and exhibitors and performs at city-sanctioned events who obtain advance written authorization from the Charleston Chief of Police.
3. Dunbar WV local ordinance 545.13, which makes it unlawful for anyone other than members of a federal, state, county or municipal law enforcement department to carry, brandish or holster weapons at Dunbar City Hall or at any city of Dunbar municipal building or city of Dunbar owned city park.
4. South Charleston, WV local ordinance 545.15, which makes it unlawful for anyone other than an authorized law enforcement official to bring into or have in his or her possession any dangerous or deadly weapon into a City-owned building, park or recreation area.
After the adoption of West Virginia Code §8-12-5a, the City of Martinsburg, WV adopted Martinsburg local ordinance 545.14, which prohibits any person from carrying or possessing a firearm or other deadly weapon, open or concealed, in any building owned, leased or under the care, custody and control of the City of Martinsburg or any political subdivision thereof. That same ordinance also prohibits any person from carrying or possessing a firearm or deadly weapon on the premises of any primary or secondary educational facility of the state unless he or she is a law enforcement officer or has the express written permission of the County School Superintendent. The Martinsburg ordinance was adopted on August 14, 2008.
The State of West Virginia has adopted certain statewide provisions and restrictions which impact an individual’s right to carry a gun in certain settings. West Virginia Code §61-7-11a, prohibits the carrying of handguns and other deadly weapons at court houses, family law masters offices, magistrates offices, primary and secondary school property and school buses; any facility being used for a primary or secondary school function while that function is occurring, any vocational educational buildings, regional jails, detention facilities, Division of Corrections facilities and their grounds.
West Virginia Code §61-7-14 further authorizes any owner, lessee or other person charged with the care, custody and control of real property to prohibit the open or concealed carrying of any firearm or deadly weapon on property under his or her domain.
West Virginia Code §61-7-7 sets forth a list of people who are proscribed by state law from possessing a firearm, which includes the following:
1) Any person convicted of a felony;
2) Any person who is habitually addicted to alcohol;
3) An unlawful use or is habitually addicted to any controlled substance;
4) A person who has been adjudicated mentally defective or has been involuntarily committed to a mental institution;
5) An illegal alien or is unlawfully in the United States;
6) Has been dishonorably discharged from the armed forces;
7) Is subject to a domestic violence protective order , after notice and hearing, which includes certain findings; or
8) Has been convicted of a misdemeanor offense of assault or battery of domestic violence or its equivalent.
This individual prohibition imposed by West Virginia Code§61-7-7 can only be lifted by an appropriate petition and order from the Circuit Court, and must be supported by specific court determinations.
B. PENDING LEGAL CHALLENGES TO EXISTING MUNICIPAL ORDINANCES:
The West Virginia Chapter of the Citizens Defense League (CDL) has filed two lawsuits which has challenged the validity of the local handgun ordinances which have been enacted by the City of Charleston, the City of South Charleston, the City of Dunbar and the City of Martinsburg.
In WVCDL v. City of Charleston, et al., Civil Action No. 2:11-cv-0048, pending before the U. S. District Court for the Southern District of West Virginia, the Citizens Defense League has asserted that the grandfathered local ordinances in question violate the United States Constitution and Article III, Section 23 of the West Virginia Constitution, and are otherwise inconsistent with or unauthorized by state law.
In WVCDL v. City of Martinsburg, et al., pending before the U. S. District Court for the Northern District of West Virginia, the Citizens Defense League has asserted the City of Martinsburg’s ordinance is contrary to the provisions and limitations of WV Code §8-12-5a, and violates the rights of citizens under the United States Constitution and Article III, Section 23 of the West Virginia Constitution.
C. THIS BILL: Removes language from West Virginia Code §7-1-3 and §8-12-5 to eliminate specific references to the authority or lack of authority of cities and counties to regulate the carrying and sale of revolvers, pistols and gunpowder, and adds a new article to the Code, §§61-7B-1, et al, to provide for uniform statewide regulation of firearms, ammunition and firearms accessories throughout the State of West Virginia, except as provided in new WV Code §61-7B-3.
D. DIFFERENCES BETWEEN ADOPTED COMMITTEE SUBSTITUTE AND ORIGINAL BILL: The adopted Committee Substitute made technical corrections, and one addition for clarification. Three separate references to “section” in Code §§61-7B-2, 61-7B-3 and 61-7B-4 were corrected to read “article”, and duplicative language in §61-7B-6 was deleted. Additional language was added tp §61-7B-6 to clarify the impact of repealing WV Code §8-12-5a, and the associated repeal of its provisions which had grandfathered preexisting municipal ordinances. The effect of the added language provides that, as of the date this legislation becomes effective, any previously grandfathered ordinance provisions would be null and void, to the extent they are contrary with the generally applicable state standards or the provisions of Article 61-7B.
II. SECTION DIRECTORY:
New §61-7B-3 adds the following provisions to the WV Code:
1. Unless expressly authorized by a statute of the state, the West Virginia legislature section fully occupies and preempts the entire field of regulation in this state which pertains to firearms, ammunition and firearms accessories.
2. A political subdivisions’s authority to regulate firearms, ammunition or firearms accessories may not be inferred from the political subdivision’s proprietary authority, home rule status or any other inherent or general power.
3. Any existing or future orders, ordinances, or rules promulgated or enforced in violation of §61-7B-3 are rendered null and void.
New §61-7B-4- creates a civil remedy to adversely affected persons for violations of this article, as follows:
1. Any person who is adversely affected by a municipal or county ordinance enacted or enforced in violation of this “section” (sic- should be “article”) has the right to file suit in an appropriate court for declarative and injunctive relief, and to recover any actual and consequential damages attributable to the violation.
2. The court is allowed to award reasonable damages to the affected person if a final determination is made in favor of the adversely affected person, or the ordinance or enforcement action is rescinded or repealed after suit has been filed, but prior to a final determination of the court.
New Code §61-7B-5 sets forth a series of exceptions, as follows:
(a) A law-enforcement agency may promulgate and enforce rules pertaining to the firearms, ammunition or firearms accessories that is ussues to its peace officers for use in the course of their duties;
(b) An employer may regulate and prohibit an employee’s carrying or possession of firearms, firearm accessories or ammunition during and in the course of the employee’s official duties;
(c) A court of administrative law judge may hear and resolve a case or controversy or issue an opinion or order on a matter within its jurisdiction;
(d) A political subdivision may enact and enforce a generally applicable zoning or business ordinance that includes firearms businesses along with other businesses, as long as the ordinance is not designed or enforced to effectively restrict or prohibit the sale, purchase, transfer, manufacture or display of firearms, ammunition or firearm accessories;
(e) A political subdivision can enact and enforce rules pertaining to a firearm range owned or operated by the political subdivision;
(f) A political subdivision can sponsor or conduct a firearm related competition or educational or cultural program and enact and enforce associated rules (However, gun buyback programs by political subdivisions are specifically prohibited);
(g) A political subdivision can enact, enforce or implement any statute enacted by the WV Legislature; and
(h) A political subdivision can lease public property to another person or entity for a firearm-related event, on terms that are agreeable to both parties.
New Code §61-7B-7- Makes the provisions of this article applicable to any order, ordinance or rule adopted by any political subdivision of the state or to any official actions taken by an employee or agent of the state prior to, on or after the effective date of this article . (Both retroactive and prospective application). However, the remedies set forth in Code §61-7B-3 shall not be placed into effect for a period of 90 days after the enactment date. As stated in that section, this delayed implementation of the remedies is intended to provide affected political subdivisions with an opportunity to come into compliance with the new provisions and requirements of the article.
III. FISCAL ANALYSIS: None.
IV. COMMENTS
A. CONSTITUTIONAL ISSUES: Interplay between Right to Bear Arms under Article III, §22 of the West Virginia Constitution, and the municipalities power and authority to provide pas laws and ordinances relating to its municipal affairs under the Home Rule provisions of the Constitution, Article VI, §39(a) of the West Virginia Constitution.
CON 3-22. Right to keep and bear arms.
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.
CON 6-39a. Home rule for municipalities.
No local or special law shall hereafter be passed incorporating cities, towns or villages, or amending their charters. The Legislature shall provide by general laws for the incorporation and government of cities, towns and villages, and shall classify such municipal corporations, upon the basis of population, into not less than two nor more than five classes. Such general laws shall restrict the powers of such cities, towns and villages to borrow money and contract debts, and shall limit the rate of taxes for municipal purposes, in accordance with section one, article ten of the constitution of the state of West Virginia. Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have power and authority to frame, adopt and amend the charter of such corporation, or to amend an existing charter thereof, and through its legally constituted authority, may pass all laws and ordinances relating to its municipal affairs: Provided, That any such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this constitution or the general laws of the state then in effect, or thereafter from time to time enacted.
Municipalities have no inherent power with regard to the exercise of the functions of their government. Such power depends solely upon grants of power by acts of the legislature, and the legislature may at any time modify, change or withdraw any power so granted by general law in conformance with the provisions of Article VI, §39(a) of the West Virginia Constitution. See State ex re. Plymale v. City of Huntington, 147 W.Va. 728, 131 S.E. 2d 160 (1963).
The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of the state, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by Article III, §22 of the WV Constitution, known as the “Right to Keep and Bear Arms Amendment”. See State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988); State ex rel. W.Va. Div. Of Natural Resources v. Cline, 488 S.E. 2d 376 (WV 1997).
B. GOVERNMENT AGENCIES AFFECTED: Municipalities, Counties, other local governments and local governmental agencies.
C. RULE MAKING AUTHORITY: None.
D. COMMITTEE REFERENCE: Judiciary.
E. TITLE ANALYSIS: Title OK
F. DRAFTING ISSUES OR OTHER COMMENTS: None.
G. EFFECTIVE DATE: 90 days from passage.