Senate Bill No. 252
(By Senators Barnes, Yoder, Bailey, Love, Fanning and Sypolt)
[Introduced January 18, 2008; referred to the Committee on the
A BILL to amend and reenact §61-7-2 and §61-7-10 of the Code of
West Virginia, 1931, as amended, all relating to
the purchase or attempt to purchase a firearm from a firearm
dealer by a person other than the actual purchaser;
prohibiting and punishing a person other than a
law-enforcement officer acting within the scope of duty from
soliciting a firearm dealer to convey a firearm other than to
an actual buyer; prohibiting and punishing the purchase or
other acquisition of a firearm with the intent of certain
dispositions of the same; prohibiting and punishing an attempt
by a person prohibited from possessing firearms to purchase a
firearm through a third-party purchaser; defining terms; and
conforming certain definitions to federal law.
Be it enacted by the Legislature of West Virginia:
That §61-7-2 and §61-7-10 of the Code of West Virginia, 1931,
as amended, be amended and reenacted, all to read as follows:
ARTICLE 7. DANGEROUS WEAPONS.
As used in this article, unless the context otherwise
(1) "Blackjack" means a short bludgeon consisting, at the
striking end, of an encased piece of lead or some other heavy
substance and, at the handle end, a strap or springy shaft which
increases the force of impact when a person or object is struck.
The term "blackjack" shall include, but not be limited to, a billy,
billy club, sand club, sandbag or slapjack.
(2) "Gravity knife" means any knife that has a blade released
from the handle by the force of gravity or the application of
centrifugal force and when so released is locked in place by means
of a button, spring, lever or other locking or catching device.
(3) "Knife" means an instrument, intended to be used or
readily adaptable to be used as a weapon, consisting of a
sharp-edged or sharp-pointed blade, usually made of steel, attached
to a handle which is capable of inflicting cutting, stabbing or
tearing wounds. The term "knife" shall include, but not be limited
to, any dagger, dirk, poniard or stiletto, with a blade over three
and one-half inches in length, any switchblade knife or gravity
knife and any other instrument capable of inflicting cutting,
stabbing or tearing wounds. A pocket knife with a blade three and
one-half inches or less in length, a hunting or fishing knife
carried for hunting, fishing, sports or other recreational uses, or
a knife designed for use as a tool or household implement shall not
be included within the term "knife" as defined herein unless such knife is knowingly used or intended to be used to produce serious
bodily injury or death.
(4) "Switchblade knife" means any knife having a
spring-operated blade which opens automatically upon pressure being
applied to a button, catch or other releasing device in its handle.
(5) "Nunchuka" means a flailing instrument consisting of two
or more rigid parts, connected by a chain, cable, rope or other
nonrigid, flexible or springy material, constructed in such a
manner as to allow the rigid parts to swing freely so that one
rigid part may be used as a handle and the other rigid part may be
used as the striking end.
(6) "Metallic or false knuckles" means a set of finger rings
attached to a transverse piece to be worn over the front of the
hand for use as a weapon and constructed in such a manner that,
when striking another person with the fist or closed hand,
considerable physical damage may be inflicted upon the person
struck. The terms "metallic or false knuckles" shall include any
such instrument without reference to the metal or other substance
or substances from which the metallic or false knuckles are made.
(7) "Pistol" means a short firearm having a chamber which is
integral with the barrel, designed to be aimed and fired by the use
of a single hand.
(8) "Revolver" means a short firearm having a cylinder of
several chambers that are brought successively into line with the
barrel to be discharged, designed to be aimed and fired by the use
of a single hand.
(9) "Deadly weapon" means an instrument which is designed to
be used to produce serious bodily injury or death or is readily
adaptable to such use. The term "deadly weapon"
not limited to,
the instruments defined in subdivisions (1)
through (8), inclusive, of this section a firearm, antique firearm,
blackjack, nunchucka, metallic or false knuckles, knife
deadly weapons of like kind or character which may be easily
concealed on or about the person. For the purposes of section
one-a, article five, chapter eighteen-a of this code and section
eleven-a, article seven of this chapter, in addition to the
definition of "knife" set forth in subdivision (3) of this section,
the term "deadly weapon" also includes any instrument included
within the definition of "knife" with a blade of three and one-half
inches or less in length. Additionally, for the purposes of
section one-a, article five, chapter eighteen-a of this code and
section eleven-a, article seven of this chapter, the term "deadly
weapon" includes explosive, chemical, biological and radiological
materials. Notwithstanding any other provision of this section,
the term "deadly weapon" does not include any item or material
owned by the school or county board, intended for curricular use,
and used by the student at the time of the alleged offense solely
for curricular purposes.
(10) "Concealed" means hidden from ordinary observation so as
to prevent disclosure or recognition. A deadly weapon is concealed
when it is carried on or about the person in such a manner that
another person in the ordinary course of events would not be placed on notice that the deadly weapon was being carried.
(11) "Firearm" means:
Any weapon, including a starter pistol,
which will expel
a projectile by action of an explosion;
(B) The frame or receiver of any such weapon; or
(C) Any firearm silencer.
(12) "Controlled substance" has the same meaning as is
ascribed to that term in subsection (d), section one hundred one,
article one, chapter sixty-a of this code.
(13) "Drug" has the same meaning as is ascribed to that term
in subsection (1), section one hundred one, article one, chapter
sixty-a of this code.
(14) "Actual buyer" means a person who purchases or otherwise
acquires a firearm from a licensed firearm dealer for himself or
herself or as a legitimate gift for a third party.
(15) "Alien" means any person not a citizen or national of the
(16) "Ammunition" means ammunition or cartridge cases,
primers, bullets, or propellant powder designed for use in any
(17) "Antique firearm" means:
(A) Any firearm, including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition system,
manufactured in or before one thousand eight hundred ninety-eight;
(B) Any replica of any firearm described in paragraph (A) if a replica:
(i) Is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or
(ii) 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.
(C) 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.
For purposes of this paragraph, the term "antique firearm" does not
include any weapon which incorporates a firearm frame or receiver,
any firearm which is converted into a muzzle loading weapon, or any
muzzle loading weapon which can be readily converted to fire fixed
ammunition by replacing the barrel, bolt, breechblock, or any
(18) "Conviction" or "convicted," for the purposes of
determining whether a person is disqualified under this article
from shipping, transporting, possessing or receiving any firearm or
other deadly weapon or obtaining a concealed weapon license, does
not include any conviction which has been expunged, or set aside or
for which a person has been pardoned or has had civil rights
restored, unless such pardon, expungement or restoration of civil
rights expressly provides that the person may not ship, transport,
possess or receive firearms. What constitutes a conviction of a
crime shall be determined in accordance with the law of the
jurisdiction in which the proceedings were held.
(19) "Crime punishable by imprisonment for a term exceeding
one year" does not include:
(A) Any federal or state offenses pertaining to antitrust
violations, unfair trade practices, restraints of trade, or other
similar offenses relating to the regulation of business practices;
(B) Any state offense classified by the laws of the state as
a misdemeanor and punishable by a term of imprisonment of two years
(20) "Family or household member" has the same meaning as in
section two hundred four, article twenty-seven, chapter
(21) "Firearm silencer" means any device for silencing,
muffling, or diminishing the report of a portable firearm,
including any combination of parts, designed or redesigned, and
intended for use in assembling or fabricating a firearm silencer,
and any part intended only for use in such assembly or fabrication.
(22) "Fugitive from justice" means any person who has fled
from any state to avoid prosecution for a crime or to avoid giving
testimony in any criminal proceeding.
(23) "Handgun" means any firearm which has a short stock and
is designed to be held and fired by the use of a single hand and
includes any pistol or revolver.
(24) "Intimate partner" means, with respect to a person, the
spouse of the person, a former spouse of the person, an individual
who is a parent of a child of the person, and an individual who cohabitates or has cohabited with the person.
(25) "Law-enforcement officer" has the same meaning as in
section one, article twenty-nine, chapter thirty.
(26) "Law-enforcement official" has the same meaning as in
section one, article twenty-nine, chapter thirty for the purposes
of section ten, article seven, chapter sixty-one, this term
includes any federal law-enforcement officer or federal agent
acting within the scope of his or her official duties.
(27) "Licensed firearm dealer" means any person licensed as a
dealer under Title 18, United States Code, Chapter 44 (18 U.S.C.
§§921 et seq.).
(28) "Loaded," with respect to a firearm, means that the
(A) Has live, unexpended ammunition in the firing position or
a position whereby the manual operation of any mechanism once would
cause live, unexpended ammunition to be fired;
(B) Has live, unexpended ammunition in a clip or magazine that
is locked in place in the firearm;
(C) Has live, unexpended ammunition in the cylinder, if the
firearm is a revolver; or
(D) Is capped or primed and has a powder charge and ball or
shot in the barrel or cylinders, if the firearm is a muzzle-loader.
A firearm is not loaded solely because a loaded clip, magazine or
speed-loader is readily accessible for immediate use or loading of
an otherwise unloaded firearm.
(29)(A) Except as otherwise provided in this subdivision, "misdemeanor crime of domestic violence" means an offense that:
(i) Is a misdemeanor under federal or state law; and
(ii) Has, as an element, the use or attempted use of physical
force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim, by a
person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a
spouse, parent, or guardian, or by a person similarly situated to
a spouse, parent, or guardian of the victim.
(B) A person is not considered to have been convicted of an
offense for purposes of this article, unless:
(i) The person was represented by counsel in the case, or
knowingly and intelligently waived the right to counsel in the
(ii) In the case of a prosecution for an offense described in
this paragraph for which a person was entitled to a jury trial in
the jurisdiction in which the case was tried, either:
(I) The case was tried by a jury, or
(II) The person knowingly and intelligently waived the right
to have the case tried by a jury, by guilty plea or otherwise.
(30) "Readily accessible for immediate use" means that a
firearm, ammunition or other deadly weapon is carried on the person
or within close proximity and in a manner that it can be retrieved
and used as easily and quickly as if carried on the person.
(31) "School bus" has the same meaning as in section one,
article one, chapter seventeen-a.
(32) "Unloaded" :
(A) With respect to a firearm, means the state of a firearm
not being loaded; and
(B) With respect to a firearm employing a percussion cap,
flintlock, or other obsolete ignition system, in addition to the
circumstances described in paragraph (A) of this subdivision, the
firearm is "unloaded" when the weapon is uncapped or when the
priming charge is removed from the pan.
§61-7-10. Display of deadly weapons for sale or hire; sale to
prohibited persons; penalties.
It shall be is unlawful for any A person to may not
publicly display and offer for rent or sale, or, where the person
is other than a natural person, to knowingly permit an employee
thereof to publicly display and offer for rent or sale, to any
passers by on any street, road or alley, any deadly weapon. machine
gun, submachine gun or other fully automatic weapon, any rifle,
shotgun or ammunition for same.
(2) Any person violating the provisions of this subsection
shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not more than five thousand dollars or shall be
confined in the county jail for not more than one year, or both
fined and confined, except that where the person violating the
provisions of this subsection is other than a natural person, such
person shall be fined not more than ten thousand dollars.
(1) It shall be unlawful for any A person to may not
knowingly sell, rent, give or lend, or, where the person is other than a natural person, to knowingly permit an employee thereof to
knowingly sell, rent, give or lend, any deadly weapon firearm or
ammunition to a person prohibited from possessing same firearm or
ammunition by any provision of this article by 18 U.S.C. §922(g) or
(n) or other applicable federal law.
(c) A person, except a law-enforcement officer who is acting
in the performance of official duties within his or her
jurisdiction, may not solicit, persuade, encourage or entice or
attempt or conspire to solicit, persuade, encourage or entice any
licensed firearm dealer to sell, rent, give, lend or otherwise
convey a firearm other than to an actual buyer or willfully and
intentionally aid or abet the commission of any act prohibited by
(d) A person, except a law-enforcement officer who is acting
in the performance of official duties within his or her
jurisdiction, may not purchase, rent, borrow or otherwise receive,
or attempt or conspire to purchase, rent, borrow or otherwise
receive, a firearm, whether from a licensed firearm dealer or
otherwise, with the intent to:
(1) Sell, rent, give, lend or otherwise provide the firearm to
any person who he or she knows or has reason to believe is
ineligible under federal law, the laws of this state or the laws of
the state in which the resale or other transfer is intended to
occur to purchase or otherwise receive from a licensed firearm
dealer a firearm for whatever reason;
(2) Transport the firearm out of this state to be sold, rented, given, lent or otherwise provided to another person who the
transferor knows is ineligible under federal law, the laws of this
state or the laws of the state in which the resale or other
transfer is intended to occur, to purchase, receive or possess a
(3) If the firearm is a handgun, transport the handgun out of
this state to be resold or otherwise provided to any person who is
not a resident of this state, unless the transfer is for temporary
use for lawful sporting purposes or the transfer would not violate
either federal law or the laws of the state in which the transfer
is intended to occur.
Whenever a violation of this subsection involves more than one
firearm, each firearm involved shall constitute a separate and
(e) A person who is ineligible to purchase or otherwise
receive or possess a firearm in this state may not solicit, employ,
assist or conspire with any person in violating subsection (d) of
(2)(f) Any person violating the provisions of who violates any
of the provisions of subsections (b) through (e) of this subsection
shall be section is guilty of a felony and, upon conviction
thereof, shall be fined not more than twenty-five one hundred
thousand dollars, or shall be imprisoned in the penitentiary of
this state in a state correctional facility for a definite term of
years of not less than three years nor more than ten years, or both
fined and imprisoned, except that where the person violating the provisions of committing an offense punishable under this
subsection is other than a natural person, such person shall be
fined not more than two hundred fifty thousand dollars. When a
violation of subsection (d) of this section involves more than one
firearm, or when a person violates subsection (e) of this section,
the sentence of imprisonment under this subsection is mandatory and
not subject to suspension, probation, work release, home
confinement, parole or any alternative to actual imprisonment until
at least three years have been served. The sentences for each
separate offense under subsections (d) or (e) of this section shall
be imposed consecutively.
(g) Except as otherwise provided in subsection (f) of this
section, any person who violates any provision of this section is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than ten thousand dollars, confined in jail for not
more than one year, or both, except where the person committing the
violation is other than a natural person, the person shall be fined
not more than twenty-five thousand dollars.
NOTE: The purpose of this bill is to
purchases" of firearms in which a person ineligible under federal
law to purchase or possess a firearm attempts to purchase a firearm
from a firearm dealer through a third party who is not ineligible.
This bill also conforms certain definitions to federal law.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would