What is the difference between federal and state gun laws? Why do I need to understand both?
In these gun laws pages, we refer to both “federal gun laws” and “state gun laws.” The major difference between the two has to do with who makes the law, who prosecutes someone who violates the law, and what the penalty is for breaking the law.
One reason why it is important for you to know that there are these two sets of gun laws is so that you can understand all of the possible ways that the abuser might be breaking the law, and you can better protect yourself. Throughout this section, we will be referring mostly to state laws. Be sure to also read our Federal Gun Laws pages to see if any federal laws apply to your situation as well. You will need to read both state and federal laws to see which ones, if any, the abuser might be violating.
If you are calling the police because you believe the abuser has violated a gun law, you do not necessarily need to be able to tell the police which law was violated (state versus federal) but local police cannot arrest someone for violating federal law, only for violating state/local laws. Only federal law enforcement, the Bureau of Alcohol, Tobacco and Firearms (“ATF”), can arrest someone for violating federal laws. If the local police believe that a state law is being violated, they could arrest the abuser and hand the case over to the state prosecutor. If the local police believe a federal law is being violated, hopefully, the police department will notify the ATF or perhaps the U.S. Attorney’s office in your state (which is the federal prosecutor). For information on how you can contact ATF directly to report the violation of federal gun laws, go to Who do I notify if I think the abuser should not have a gun? If the abuser is breaking both state and federal laws, s/he might be prosecuted in both state and federal court.
What is the definition of a felony?
Throughout these gun law pages, we will refer to gun laws that make it illegal for someone convicted of a felony to have a gun. A felony is a more serious crime than a misdemeanor. In West Virginia, any crime punishable by a state prison sentence is a felony, while any other crime is a misdemeanor.1 Usually, a person sentenced to a term of more than one year will go to state prison and someone who faces a sentence of one year or less will serve that sentence in a local jail.
1 W. Va. Code § 61-11-1
I am a victim of domestic violence and the abuser has a gun. Is that legal?
In West Virginia, a person cannot have or buy a gun if:
- s/he has been convicted of a crime that is punishable by imprisonment of more than one year, which is usually a felony;
- s/he has been convicted of a misdemeanor offense of domestic violence, assault, or battery where the victim was a current or former spouse or intimate partner, a parent, or household member;
- s/he is addicted to alcohol;
- s/he is addicted to, or uses, drugs;
- a judge decided that s/he has a mental illness;
- s/he has been involuntarily committed to a mental institution;
- s/he is unlawfully in the United States;
- s/he has been dishonorably discharged from military service; or
- s/he is subject to a domestic violence protective order that meets the following three requirements:
- it was issued after a hearing of which the abuser had notice and an opportunity to be heard;
- it restrains the abuser from:
- harassing, stalking, or threatening his/her intimate partner or a child of his/her intimate partner; or
- engaging in other conduct that would place his/her partner or the child in reasonable fear of bodily injury; and
- it either:
- includes a finding that the abuser is a credible threat to the physical safety of his/her intimate partner or child; or
- prohibits the use, attempted use, or threatened use of physical force against an intimate partner or his/her child that would reasonably be expected to cause bodily harm.1
If a person is under 18, s/he can only have a firearm:
- with his/her parent’s permission;
- on his/her property;
- while hunting; or
- while traveling between areas where s/he is allowed to have a gun.2
Additionally, if a person is under the age of 21, s/he is not allowed to have a concealed firearm without a license.3
To read the definition of a felony, see What is the definition of a felony?
If any of these situations apply to the abuser, it may be illegal for him/her to have a gun. Also, federal laws, which apply to all states, may restrict an abuser’s right to have a gun. Go to Federal Gun Laws to get more information.
1 W. Va. Code § 61-7-7(a)
2 W. Va. Code § 61-7-8
3 W. Va. Code § 61-7-7(c)(1)