Bill Summary – FastDemocracy

WEST VIRGINIA LEGISLATURE
REGULAR SESSION
                  Introduced House Bill 5135
  By Delegates Horst, Howell, McGeehan, Summers,
   Kimble, Thorne, Espinosa, Householder, Phillips,
                  Crouse, and Hite [Introduced January 25, 2024; Referred to the Committee on the Judiciary]
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  A BILL to amend and reenact §61-7-2, §61-7-3, §61-7-6, and §61-7-7 of the Code of West Virginia,
            1931, as amended, relating to adding definition of "ammunition" for purposes of obtaining
            state license to carry concealed deadly weapon; and allowing those persons 18 to 20 years
            old to be able to carry a concealed deadly weapon without a permit, as is presently allowed
            for those persons 21 years and older.
     Be it enacted by the Legislature of West Virginia:
     ARTICLE                         7.                     DANGEROUS                        WEAPONS.
     §61-7-2.                                                                                  Definitions.
            As used in this article, unless the context otherwise requires:
            "Ammunition" means ammunition or cartridge cases, primers, bullets, or propellant powder
  designed for use in any firearm. The term "ammunition" includes ammunition designed for training
  and includes, but is not limited to, marking rounds and simulated training munitions.
            (1) "Antique firearm" means:
            (A) (1) Any firearm, including, but not limited to, a firearm with a match lock, flintlock,
  percussion cap, or similar type of ignition system which was manufactured on or before 1898;
            (B) (2) Any replica of any firearm described in paragraph (A) (1) of this subdivision if such
  the replica is not designed or redesigned to use 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; and
           (C) (3) Any muzzle-loading rifle, muzzle-loading shotgun, or muzzle-loading pistol, which is
 designed to use black powder, or black powder substitute, and which cannot use fixed
 ammunition. For purposes of this subdivision, the term "antique firearm" shall not include any
 weapon which includes 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 combination thereof.
           (2) "Blackjack" means a short bludgeon consisting, at the striking end, of an encased piece
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 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" includes, but
 is not limited to, a billy, billy club, sand club, sandbag, or slapjack.
           (3) "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. For purposes of concealed handgun licensees, a licensee is
 considered to be carrying on or about his or her person while in or on a motor vehicle if the firearm
 is located in a storage area in or on the motor vehicle.
           (4) "Controlled substance" has the same meaning as is ascribed to that term in §60A-1-
 101(e) of this code.
           (5) "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"
 includes, but is not limited to, the instruments defined in subdivisions (1), (2), (5), (7), (8), (9), (10),
 (11), (12), (13), (14), and (15), inclusive, of this section or other deadly weapons of like kind or
 character which may be easily concealed on or about the person. For the purposes of §18A-5-1a
 of this code and §61-7-11a of this code, in addition to the definition of "knife" set forth in subdivision
 (9) of this subsection, 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 §18A-5-1a of this code and §61-7-11a of this code, 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. The term "deadly weapon" does not include pepper spray
 as defined in subdivision (12) of this subsection when used by any person solely for self-defense
 purposes.
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           (6) "Drug" has the same meaning as is ascribed to that term in §60A-1-101(m) of this code.
           (7) "Firearm" means any weapon which will expel a projectile by action of an explosion:
 Provided, That it does not mean an antique firearm as defined in subdivision (1) of this subsection;
 except for the purposes of §48-27-502 of this code.
           (8) "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 released is locked in place by means of a
 button, spring, lever, or other locking or catching device.
           (9) "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" includes,
 but is not 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 is not included
 within the term "knife" as defined in this subdivision unless the knife is knowingly used or intended
 to be used to produce serious bodily injury or death.
           (10) "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 who was struck. The terms "metallic or false knuckles" includes any such
 instrument without reference to the metal or other substance or substances from which the
 metallic or false knuckles are made.
           (11) "Nunchaku" 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 a
 manner that allows the rigid parts to swing freely so that one rigid part may be used as a handle
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 and the other rigid part may be used as the striking end.
           (12) "Pepper spray" means a temporarily disabling aerosol that is composed partly of
 capsicum oleoresin and causes irritation, blinding of the eyes, and inflammation of the nose,
 throat, and skin that is intended for self-defense use.
           (13) "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.
           (14) "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.
           (15) "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.
     §61-7-3. Carrying a deadly weapon without provisional license or other authorization by
               persons under twenty-one eighteen years of    age;      penalties.
            (a) Any person under twenty-one eighteen years of age and not otherwise prohibited from
  possessing firearms under section seven of this article who carries a concealed deadly weapon,
  without a state license or other lawful authorization established under the provisions of this code,
  is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more
  than $1,000 and may be imprisoned in jail for not more than twelve months for the first offense; but
  upon conviction of a second or subsequent offense, he or she is guilty of a felony and, upon
  conviction thereof, shall be imprisoned in t a state correctional facility not less than one nor more
  than five years and fined not less than $1,000 nor more than $5,000.
            (b) The prosecuting attorney in all cases shall ascertain whether or not the charge made
 by the grand jury is a first offense or is a second or subsequent offense and, if it is a second or
 subsequent offense, it shall be so stated in the indictment returned, and the prosecuting attorney
 shall introduce the record evidence before the trial court of such second or subsequent offense
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 and may not be permitted to use discretion in introducing evidence to prove the same on the trial.
     §61-7-6. Exceptions as to prohibitions against carrying concealed handguns for persons at
               least eighteen years of age and fewer than twenty-one years of age; exemptions Exemptions from licensing fees.
            (a) The provisions in section three of this article do not apply to any person at least
  eighteen years of age and fewer than twenty-one years of age who is:
            (1) Carrying a deadly weapon upon his or her own premises;
            (2) Carrying a firearm, unloaded, from the place of purchase to his or her home, residence
  or place of business or to a place of repair and back to his or her home, residence or place of
  business; or
            (3) Possessing a firearm while hunting in a lawful manner or while traveling from his or her
  home, residence or place of business to a hunting site and returning to his or her home, residence
  or place of business;
           (4) A member of a properly organized target-shooting club authorized by law to obtain
 firearms by purchase or requisition from this state or from the United States for the purpose of
 target practice from carrying any pistol, as defined in this article, unloaded, from his or her home,
 residence or place of business to a place of target practice and from any place of target practice
 back to his or her home, residence or place of business, for using any such weapon at a place of
 target practice in training and improving his or her skill in the use of the weapons;
           (5) A law-enforcement officer or law-enforcement official or chief executive as defined in
 section one, article twenty-nine, chapter thirty of this code;
           (6) An employee of the West Virginia Division of Corrections duly appointed pursuant to
 section eleven-c, article one, chapter twenty-five of this code while the employee is on duty;
           (7) A member of the United States armed forces, reserve or National Guard;
           (8) A resident of another state who holds a valid permit or license to possess or carry a
 handgun issued by a state or a political subdivision subject to the provisions and limitations set
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 forth in section six-a of this article;
           (9) A federal law-enforcement officer or federal police officer authorized to carry a weapon
 in the performance of the officer's duty; and
           (10) A parole officer appointed pursuant to section fourteen, article twelve, chapter sixty-
 two of this code in the performance of his or her duties.
           (b) The following judicial officers and prosecutors and staff are exempt from paying any
 application fees or licensure fees required under this article. However, they shall make application
 and satisfy all licensure and handgun safety and training requirements to obtain a license as set
 forth in section four of this article:
           (1) Any justice of the Supreme Court of Appeals of West Virginia;
           (2) Any circuit judge;
           (3) Any retired justice or retired circuit judge designated senior status by the Supreme
 Court of Appeals of West Virginia;
           (4) Any family court judge;
           (5) Any magistrate;
           (6) Any prosecuting attorney;
           (7) Any assistant prosecuting attorney; or
           (8) Any duly appointed investigator employed by a prosecuting attorney.
     §61-7-7. Persons prohibited from possessing firearms; classifications; right of
               nonprohibited persons over twenty-one eighteen years of age to carry concealed deadly weapons; offenses and penalties; reinstatement of rights to possess;
               offenses;                                                                         penalties.
            (a) Except as provided in this section, no person shall possess a firearm, as such is defined
  in section two of this article §61-7-2, who:
            (1) Has been convicted in any court of a crime punishable by imprisonment for a term
  exceeding one year;
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            (2) Is habitually addicted to alcohol;
            (3) Is an unlawful user of or habitually addicted to any controlled substance;
            (4) Has been adjudicated to be mentally incompetent or who has been involuntarily
  committed to a mental institution pursuant to the provisions of chapter twenty-seven of this code
  §27-1-1 et seq. of this code or in similar law of another jurisdiction: Provided, That once an
 individual has been adjudicated as a mental defective or involuntarily committed to a mental
 institution, he or she shall be duly notified that they are to immediately surrender any firearms in
 their ownership or possession: Provided, however, That the mental hygiene commissioner or
 circuit judge shall first make a determination of the appropriate public or private individual or entity
 to act as conservator for the surrendered property;
           (5) Is an alien illegally or unlawfully in the United States;
           (6) Has been discharged from the armed forces under dishonorable conditions;
           (7) Is subject to a domestic violence protective order that:
           (A) Was issued after a hearing of which such person received actual notice and at which
 such person had an opportunity to participate;
           (B) Restrains such person from harassing, stalking or threatening an intimate partner of
 such person or child of such intimate partner or person, or engaging in other conduct that would
 place an intimate partner in reasonable fear of bodily injury to the partner or child; and
           (C)(i) Includes a finding that such person represents a credible threat to the physical safety
 of such intimate partner or child; or
           (ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical
 force against such intimate partner or child that would reasonably be expected to cause bodily
 injury; or
           (8) Has been convicted of a misdemeanor offense of assault or battery either under the
 provisions of section twenty-eight, article two of this chapter §61-2-28 of this code or the provisions
 of subsection (b) or (c), section nine of said article §61-2-9(b) or §61-2-9(c) of this code or a federal
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 or state statute with the same essential elements in which the victim was a current or former
 spouse, current or former sexual or intimate partner, person with whom the defendant has a child
 in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the
 defendant’s child or ward or a member of the defendant's household at the time of the offense or
 has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of
 domestic violence.
           Any person who violates the provisions of this subsection shall be guilty of a misdemeanor
 and, upon conviction thereof, shall be fined not less than $100 nor more than $1,000 or confined in
 the county jail for not less than 90 days nor more than one year, or both.
           (b) Notwithstanding the provisions of subsection (a) of this section, any person:
           (1) Who has been convicted in this state or any other jurisdiction of a felony crime of
 violence against the person of another or of a felony sexual offense; or
           (2) Who has been convicted in this state or any other jurisdiction of a felony controlled
 substance offense involving a Schedule I controlled substance other