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.

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:
  1. it was issued after a hearing of which the abuser had notice and an opportunity to be heard;
  2. it restrains the abuser from:
     
     1. harassing, stalking, or threatening his/her intimate partner or a child of his/her intimate partner; or
     2. engaging in other conduct that would place his/her partner or the child in reasonable fear of bodily injury; and
  3. it either:
     
     1. includes a finding that the abuser is a credible threat to the physical safety of his/her intimate partner or child; or
     2. 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)

If you have a protective order against some who has abused you, then in most cases, West Virginia law doesn’t allow that person to have a gun. A judge might also include a specific provision in the order about not having a gun but that isn’t necessary for the law to apply. The law says that for a person to be prohibited from having a gun due to a protective order, there must be an order that meets the following three requirements:

1. it was issued after a hearing of which the abuser had notice and an opportunity to be heard;

2. it restrains the abuser from:

1. harassing, stalking, or threatening his/her intimate partner or a child of his/her intimate partner; or
2. engaging in other conduct that would place his/her partner or the child in reasonable fear of bodily injury; and

3. it either:

1. includes a finding that the abuser is a credible threat to the physical safety of his/her intimate partner or child; or
2. 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

Additionally, federal laws, which apply to all states, restrict a person’s right to have a gun under certain circumstances. Go to Federal Gun Laws to get moe information.

¹ W. Va. Code § 61-7-7(a)(7)

Criminal records are open to the public, but they are not always easy to access. If you know the exact courthouse where the abuser may have been convicted, you can go to the courthouse and ask the clerk of court for access to those records. In West Virginia, you need a picture ID to get access to any records involving domestic violence at the courthouse.

Domestic violence misdemeanor and felony records are also kept in the National Instant Criminal Background Check System (NICS). However, no one other than law enforcement officials and licensed firearm sellers are allowed to search the NICS. Your local police department may be willing to search NICS for you if you ask, but they are not required to do so.

To read more about the NICS, please see the question, What will happen if the abuser tries to purchase a gun?

If an abuser is arrested for violating West Virginia’s domestic violence law, the arresting officer is required to take (seize) any weapons alleged to have been involved or threatened to be used in the commission of the crime. The officer can also seize weapons in plain view and weapons that may be possessed in violation of a protective order.¹

¹ W. Va. Code § 48-27-1002(e)

Under West Virginia law, anyone who has a gun while s/he is prohibited from possession because of any of the restrictions listed in I am a victim of domestic violence and the abuser has a gun. Is that legal? is guilty of a misdemeanor. The punishment for a misdemeanor conviction is a fine between $100 and $1,000, confinement in the county jail for between 90 days and one year, or both.¹ However, if the person had a prior felony conviction or certain drug convictions, then s/he is guilty of a felony, which is punishable by imprisonment up to five years, a fine of up to $5,000, or both.²

If someone who is not allowed to carry a gun is caught with a concealed gun, s/he is guilty of a felony, which is punishable by imprisonment up to three years, a fine of up to than $5,000, or both.³ Also, if that person who carries a concealed firearm has a felony conviction or certain drug convictions, s/he can be imprisoned for up to ten years, issued a fine of up to $10,000, or both.⁴

Federal laws, which apply to all states, may impose additional penalties for violating federal gun laws under certain circumstances. Go to Federal Gun Laws to get more information.

¹ W. Va. Code § 61-7-7(a)
² W. Va. Code § 61-7-7(b)(2)
³ W. Va. Code § 61-7-7(d)
⁴ W. Va. Code § 61-7-7(e)

Trying to understand both federal and state law can be confusing, but there are people out there who can help you better understand the law and your rights under the law.

• You can contact the National Center on Protection Orders and Full Faith & Credit to get more information about the federal firearm law and how it applies to you: 1-800-903-0111, ext. 2
• You can contact a local domestic violence organization in your area. (See our WV Advocates and Shelters page.)
• You can write to our Email Hotline.