With a Congress that has been unable to nullify the NFA, the 2A battleground continues to shift to the local level – a trend we have documented at length. “It is therefore the intent of the Legislature of the State of West Virginia to create an Office of Public Defense, which shall acquire and transfer machineguns to Qualified Persons.”
While its neighbor to the east is gutting the Constitution, infringing on civil liberties, and disarming citizens at a rate that would have made the British proud, West Virginia, along with gun rights group Gun Owners of America, has introduced some clever legislation to allow civilians to possess machine guns.
“For decades, Americans have been told that the 1986 machine gun ban permanently stripped them of access to modern arms. But Congress included an explicit exemption for transfers to or by a State, and that language matters,” said Erich Pratt, Senior Vice President of Gun Owners of America, in a press statement, adding, “West Virginia is demonstrating that states have both the authority and the responsibility to defend the Second Amendment, restore parity between citizens and the government, and lead the way in dismantling unconstitutional federal overreach.”
State Senators Rose and Z. Maynard introduced Senate Bill 1071 on February 23. After citing the text of the Second Amendment, the bill puts forth the purpose of the legislation in clear terms, stating, “To that end, the Second Amendment guarantees the people’s unrestricted access to arms to ‘repel invasions and suppress insurrections,’ ‘render large standing armies unnecessary,’ and ‘resist tyranny.'”
The bill also cites the Heller case, where the Supreme Court affirmed that, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.”
The core mechanism of the bill leverages a statutory exception contained in 18 U.S.C. 922(o), commonly known as the Hughes Amendment, which states that the prohibition “does not apply with respect to… a transfer to or by, or possession by or under the authority of” a state or any department or political subdivision thereof.
Other key elements of the bill require transfer to a “Qualified Person,” defined as any person who is eligible to purchase and possess firearms under West Virginia and federal law.
Transfers would be carried out by a newly-created Office of Public Defense within the West Virginia State Police.
Individuals would be charged a $250 fee for each machinegun sold and transferred under the act, which would be paid into the Public Defense Fund.
This bill marks the first time, to our knowledge, that an exemption to a gun control bill creating a special class of rights for a specific group of people (usually law enforcement officers) has been leveraged to the benefit of ordinary citizens. Similar bills could be leveraged by other conservative states to restore gun rights to law-abiding citizens.
