JimMullinsWVCDL
State Researcher
imported post
You have to go back to the beginning of this thread and note the confusing nature of West Virginia's hunting statutes and the different approaches taken by the DNR and the State Police. See W.Va. Code §20-2-5, §20-2-6, §20-2-6a, §20-2-19a, §20-2-42l, and §20-2-46e. §20-2-6a protects the right of licensed individuals to carry concealed handguns notwithstanding the hunting laws, but OC (including OC in cars, which the State Police says is legal) is in the gray.
Unfortunately for the nonlawyers here, our case law is not freely available to the public online like our statutes are. (Edit: slip opinions of cases from the fall 1991 term to the present are available on the state Supreme Court's web site, but they do not contain the reporter page numbering required when citing to these cases.)
Although the West Virginia Supreme Court of Appeals adopted a very expansive view of the individual's right to keep and bear arms in State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), the court greatly muddied the waters by upholding §20-2-5(10) (subsequently renumbered as subsection (9)) in State ex rel. West Virginia Div. of Nat. Resources v. Cline, 200 W.Va. 101, 488 S.E.2d 376 (1997) (links to slip opinions: majority -- Justice Maynard's dissent).
Although not specifically addressed in the majority opinion of DNR v. Cline, Justice Maynard indicated in his dissent, which I highly commend for your reading,that the gun at issue was apparently being carried for hunting purposes. The majority upheld the limitation of how guns may be transported in vehicles as a reasonable exercise of the state's police power in light of numerous cases involving accidental discharges of guns carried for hunting purposes within vehicles. The Legislature finally enacted §20-2-6a in 2002 to clarify the legality of concealed carry but OC while engaging in Chapter 20-regulated activities will have to await future litigation or legislation. I would add that in his analysis of the scope of Chapter 61, Article 7 (West Virginia's weapons statutes), Justice Maynard omitted State v. Totten, 169 W.Va. 729, 289 S.E.2d 491 (1982), which defines "carrying" a weapon as "located either on the person or in such close proximity that it can be reached without a material change in his position and the weapon must be readily accessible when such person reaches to where it is located." Id. at Syllabus point 3 (Under Article VIII, §4 of our state constitution, the West Virginia Supreme Court uses a syllabus point systsm for stating legal points adjudicated in each case, so if you are from another state that does not use this system and ever have a case in West Virginia, understand that it is the syllabus within each case decided by our Supreme Court that the binding precedents are stated).
I obviously agree with Justice Maynard that §20-2-5 does not square with our state constitutional language protecting the right to keep and bear arms; it should be noted with equal importance that these rules predate the WV RKBA Amendment and Buckner, and dates back to the days of our old, highly restrictive license to carry law under which legal hunting was the only means by which a person could legally be armed anywhere outside the home.
For full disclosure, I note that I worked as a summer clerk for Justice Maynard this past summer and am personally supporting his candidacy for reelection to the court next year.
One of the bills on our 2008 legislative agenda is a bill to clarify West Virginia's hunting statutes to ensure the legality of OC as well as exempt CHL holders from certain limitations on how long guns may be carried or transported; it is currently the 14th bill on our agenda, available by clicking here. Feel free to PM me if you have any comments about this or other bills on the agenda.
You have to go back to the beginning of this thread and note the confusing nature of West Virginia's hunting statutes and the different approaches taken by the DNR and the State Police. See W.Va. Code §20-2-5, §20-2-6, §20-2-6a, §20-2-19a, §20-2-42l, and §20-2-46e. §20-2-6a protects the right of licensed individuals to carry concealed handguns notwithstanding the hunting laws, but OC (including OC in cars, which the State Police says is legal) is in the gray.
Unfortunately for the nonlawyers here, our case law is not freely available to the public online like our statutes are. (Edit: slip opinions of cases from the fall 1991 term to the present are available on the state Supreme Court's web site, but they do not contain the reporter page numbering required when citing to these cases.)
Although the West Virginia Supreme Court of Appeals adopted a very expansive view of the individual's right to keep and bear arms in State ex rel. City of Princeton v. Buckner, 180 W.Va. 457, 377 S.E.2d 139 (1988), the court greatly muddied the waters by upholding §20-2-5(10) (subsequently renumbered as subsection (9)) in State ex rel. West Virginia Div. of Nat. Resources v. Cline, 200 W.Va. 101, 488 S.E.2d 376 (1997) (links to slip opinions: majority -- Justice Maynard's dissent).
Although not specifically addressed in the majority opinion of DNR v. Cline, Justice Maynard indicated in his dissent, which I highly commend for your reading,that the gun at issue was apparently being carried for hunting purposes. The majority upheld the limitation of how guns may be transported in vehicles as a reasonable exercise of the state's police power in light of numerous cases involving accidental discharges of guns carried for hunting purposes within vehicles. The Legislature finally enacted §20-2-6a in 2002 to clarify the legality of concealed carry but OC while engaging in Chapter 20-regulated activities will have to await future litigation or legislation. I would add that in his analysis of the scope of Chapter 61, Article 7 (West Virginia's weapons statutes), Justice Maynard omitted State v. Totten, 169 W.Va. 729, 289 S.E.2d 491 (1982), which defines "carrying" a weapon as "located either on the person or in such close proximity that it can be reached without a material change in his position and the weapon must be readily accessible when such person reaches to where it is located." Id. at Syllabus point 3 (Under Article VIII, §4 of our state constitution, the West Virginia Supreme Court uses a syllabus point systsm for stating legal points adjudicated in each case, so if you are from another state that does not use this system and ever have a case in West Virginia, understand that it is the syllabus within each case decided by our Supreme Court that the binding precedents are stated).
I obviously agree with Justice Maynard that §20-2-5 does not square with our state constitutional language protecting the right to keep and bear arms; it should be noted with equal importance that these rules predate the WV RKBA Amendment and Buckner, and dates back to the days of our old, highly restrictive license to carry law under which legal hunting was the only means by which a person could legally be armed anywhere outside the home.
For full disclosure, I note that I worked as a summer clerk for Justice Maynard this past summer and am personally supporting his candidacy for reelection to the court next year.
One of the bills on our 2008 legislative agenda is a bill to clarify West Virginia's hunting statutes to ensure the legality of OC as well as exempt CHL holders from certain limitations on how long guns may be carried or transported; it is currently the 14th bill on our agenda, available by clicking here. Feel free to PM me if you have any comments about this or other bills on the agenda.