Article III, § 22 of the Constitution of West Virginia, which was approved by the voters on November 4, 1986, states: “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.”

In the 1988 case State ex rel. City of Princeton v. Buckner, the West Virginia Supreme Court of Appeals (the state’s highest court) held that a state statute universally requiring a license in order to carry a deadly weapon violated art. III, § 22, because it infringed on the ability to “keep and bear arms” for defensive purposes.1 Importantly, however, the court also held that the “right to keep and bear arms” under art. III, § 22 “is not unlimited,” and must be balanced with the “State’s duty, under it [sic] police power, to make reasonable regulations for the purpose of protecting the health, safety and welfare of its citizens.”2

In State v. Daniel, the supreme court of appeals held, in 1990, that a statute prohibiting persons from brandishing or using weapons in a manner that causes or threatens a breach of the peace was a valid exercise of the police power.3 The court found that art. III, § 22 does not give a “citizen the right to use [a] weapon unlawfully.” Thus, the claim that the statute violated appellant’s rights under art. III, § 22 was “without merit.”4

In the 1995 case In re Metheney, the supreme court of appeals rejected an art. III, § 22 challenge to a statute permitting only qualified citizens to obtain a license to carry a concealed weapon.5See also In re Dailey, 465 S.E.2d at 613 (Workman, J., concurring) (“nothing in our opinion precludes the Legislature from expanding on the requirements of the law for a license to carry a concealed weapon”).))

In State ex rel. West Virginia Div. of Natural Resources v. Cline, the supreme court of appeals held, in 1997, that a statute prohibiting the transportation of loaded firearms in vehicles and other conveyances was a legitimate and reasonable exercise of the police power and did not violate art. III, § 22.6 The court found the state restriction reasonable because it did not infringe upon a sportsperson’s ability to possess firearms for hunting purposes, but merely regulated the manner in which firearms may be transported for such purposes.7

In the 2004 case Rohrbaugh v. State of West Virginia, the supreme court of appeals rejected an art. III, § 22 challenge to a statute prohibiting a convicted felony sexual offender from regaining the ability to possess a firearm.8 The court held that the statutory restrictions were a “proper exercise of the Legislature’s police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms.”9

In Hartley Hill Hunt Club v. County Comm’n, the supreme court of appeals, in 2007, rejected an art. III, § 22 challenge to a statute prohibiting hunting on public land on Sundays, and allowing counties to hold an election to determine whether to prohibit hunting on private land.10 The court concluded that art. III, § 22 preserves the state’s right, through the exercise of its police power, to enact reasonable laws defining what forms of hunting are lawful.11

Notes
  1. 377 S.E.2d 139, 144-45 (W. Va. 1988). ⤴︎
  2. Id. at 148-49. ⤴︎
  3. 391 S.E.2d 90 (W. Va. 1990). ⤴︎
  4. Id. at 97.  Overruled on other grounds by Daniel v. West Virginia, 964 F. Supp. 1050 (S.D. W. Va. 1997). ⤴︎
  5. 391 S.E.2d 635, 637-38 (W. Va. 1990) (overruled on other grounds by In re Dailey, 465 S.E.2d 601, 609 (W. Va. 1995 ⤴︎
  6. 488 S.E.2d 376 (W. Va. 1997). ⤴︎
  7. Id. at 382. ⤴︎
  8. 607 S.E.2d 404, 412-14 (W. Va. 2004). ⤴︎
  9. Id. at 414.  See also Perito v. County of Brook, 597 S.E.2d 311 (W. Va. 2004) (requiring persons convicted of felonies to obtain approval before possessing a firearm). ⤴︎
  10. 647 S.E.2d 818 (W. Va. 2007). ⤴︎
  11. Id. at 824-25. ⤴︎