CHARLESTON, W.Va. (July 9, 2021) – Today, a West Virginia law purporting to make the state a “Second Amendment Sanctuary” went into effect. In practice, the West Virginia “Second Amendment Preservation Act” will only protect and preserve most federal gun control.

The new law bans state and local enforcement of federal red flag laws, but leaves police free to enforce virtually all other federal gun control – present and future.

Del. Brandon Steele along with a coalition of 10 cosponsors introduced House Bill 2694 (HB2694)  on Feb. 23. As initially passed by the House, the proposed law would have prohibited a state agency or department from cooperating with the enforcement of eight specific federal actions relating to firearms that “that differ from or is not substantially similar to a West Virginia law.”

In effect, it would have banned state and local enforcement of current or future federal gun control measures that don’t have concurrent measures in law in the state of West Virginia. This would have been a strong step taking on federal gun control on the books today as well as any implemented in the future.

But influential law enforcement groups lobbied aggressively against the bill. Charleston Police Chief James “Tyke” Hunt warned that the bill as passed by the House would effectively defund the police by cutting off federal funding – and would make coordination with federal authorities, such as the federal BATFE, impossible. He said that without funding from and coordination with the ATF, his county’s drug problems would grow.

“If this bill passes and these funds go away, the Metro Drug Unit will not exist,” Hunt said, adding, “We will soon have a bigger drug problem in Kanawha County.”

With “thin blue line” Republicans gladly going along with law enforcement demands to continue supporting federal gun control, the Senate significantly amended HB2694 and stripped the legislation of most of its teeth. The Senate passed a significantly amended version of the bill and the House ultimately concurred with the Senate version. The House approved the measure 92-7 and the Senate passed it by a 30-4 vote. With Gov. Jim Justice’s signature on April 27, the law went into effect on July 9.

The only significant positive provision in the final version of HB2694 prohibits state enforcement of federal “red flag laws” in West Virginia.

“No police department, agency, or officer of the state may enforce an order under a red flag law against a citizen of this state or a person subject to the protections of the laws of this state when the person against whom the order is directed has the lawful right under the laws of this state to possess firearms.”

HB2694 defines a red flag law as “a law under which a person may petition for a court to temporarily take away another person’s right to possess a firearm which it is otherwise lawful under the law of West Virginia for the respondent to possess.”

The finalized version of HB2694 includes provisions that appear to block state and local police from enforcing federal gun control under the anti-commandeering doctrine.

“No agency of this state, political subdivision of this state, or employee of an agency, or political subdivision of this state, acting in his or her official capacity, may be commandeered by the United States government under an executive order or action of the President of the United States or under an act of the Congress of the United States. Federal commandeering of West Virginia law-enforcement for purposes of enforcement of federal firearms laws is prohibited.”

But the convoluted definition of anti-commandeering in the bill makes this provision utterly meaningless.

“Commandeering” means taking control of or seizing the assets, personnel, or operations of an agency of this state, or of a political subdivision of this state, or the employees of an agency or political subdivision of this state without the express authority for the control having been formally given by the state or political subdivision of the state.

This never happens.

The feds don’t just go grab some local cops and force them to enforce federal gun control. State and local police do this voluntarily. The feds ask for help. State and local police provide it. And under HB2694, they will be free to continue doing so. Stopping state and local cops from cooperating with the feds requires specific prohibitions barring them from doing so – a perfectly legitimate and legal action by any state under the anti-commandeering doctrine properly defined.

Along with the ban on enforcing red flag laws, HB2694 does prohibit state and local police from participating in some federal actions. But as Tenth Amendment Center executive director Michael Boldin put it, “It has a loophole so big you could drive a 757 through it — filled with gun-grabbers of course.”

The law prohibits police agencies from participating in the execution of a federal search warrant or arrest warrant if it only involves the possession of “firearms, firearms accessories, or ammunition … which is lawful under the laws of this state.”

This could stop state and local cops from participating in outright gun confiscation in the future. That is unless the individual is suspected of another crime as well. And this will almost always be the case. The feds rarely go after people based solely on federal gun laws. They almost always combine gun charges with something else such as federal drug charges. Along with the drug war, there are all kinds of other federal laws federal agents can come up with to justify state cooperation with gun control. That means West Virginia law enforcement will remain right by the fed’s side enforcing those gun laws – along with other federal laws, most of which are also unconstitutional (including the federal war on drugs).

As Boldin noted, the final version of HB2694 appears to allow enforcement of all federal gun control – rather than ban it – as long as state and local cops are participating in drug war enforcement.

“This is extremely common, unfortunately. Conservative and Republican legislators are more than happy to throw away the Second Amendment to keep their precious – and unconstitutional – federal drug war,” Boldin said.

Prohibiting state enforcement of federal red flag laws is a solid step forward, but the other provisions in HB2694 won’t deliver any protection at all.

Mike Maharrey

The 10th Amendment

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