The regular session of the West Virginia Legislature wraps up Saturday, and one of the most curious bills to get traction this year was SB 1071, the Creating Public Defense and Provisioning Act.
Don’t be fooled by the generic title—who could be against public defense? The real purpose was to make it easier for West Virginians to buy machine guns.
The sale or transfer of machine guns has been tightly regulated since the passage of the 1934 National Firearms Act. A separate federal law passed in 1986 prohibits civilians from possessing a newly manufactured machine gun, but it does permit the transfer (sale) of machine guns lawfully owned prior to May 19, 1986.
In other words, a law-abiding citizen can already own a machine gun if they meet certain requirements and register the weapon. Machine guns manufactured after May 1986 can also be purchased, but that is tightly regulated and requires special federal licensing.
The bill that would have attempted to loosen the requirements in West Virginia popped up unexpectedly late in the session and passed out of the Senate Judiciary Committee. The primary sponsor was Senator Chris Rose, a far-right Republican from 2nd District (R, Monongalia). Senators Zack Mayard (R, Lincoln) and David Thorne (R, Hampshire) were co-sponsors.
Here is a notable line from the bill: “It is therefore in the public interest that the State provide a means whereby machine guns may be obtained by citizens.”
The bill established a new Office of Public Defense managed by the State Police to oversee the sale and distribution of machine guns to eligible residents. For the record, the State Police wanted no part of this. They are busy enough already and no doubt wary of showing up at a crime scene where they are outgunned.
The bill rolled out of the Senate Judiciary committee with the support of Chairman Tom Willis (R, Berkeley). “Before 1986 West Virginians could purchase machine guns freely. You could order them from Sears catalog, you could buy them from the store,” said Willis, who is also a U.S. Senate candidate. “We’re trying to get back to that state of being, which we think is the proper state of the Second Amendment, so that we’ve got a right to protect ourselves from tyranny from government.”
Interesting argument. Does that mean if citizens believe the current administration is behaving tyrannically—the excesses by ICE for example—that citizens should be empowered to have automatic weapons to return fire?
Thankfully, Senate President Randy Smith, himself a conservative and staunch Second Amendment supporter, stepped in and killed the bill. He pointed out, accurately, that the bill was “poorly drafted” by a gun rights group that “had never been active in the West Virginia Legislature prior to this bill and that if passed would face numerous legal challenges.”
Smith is right. The fundament legal argument is the Supremacy Clause of the U.S. Constitution. Federal law takes precedence over a conflicting state law. In addition, Smith was irked by the advocates.
“I have seen individual Senate members harassed and threatened. I have seen calls for people to show up at their homes. I have seen people accuse the Senate of treason,” Smith said.
Predictably, Rose is not giving up on the issue. “As a Second Amendment absolutist, it’s very important to me to see that all our constitutional rights—especially the Second Amendment—are restored as much as we can,” he said.
Rose must believe that his constituents are more concerned about their ability to own advanced weaponry than roads, jobs and education.
Know this about the West Virginia Legislature: What it DOES NOT pass is often as important as what it does pass. Thus, the failure of the machine gun bill is a legislative victory.