As things currently stand in the Volunteer State, an individual seeking to have their 2A rights restored have limited options. A pardon and/or expungement of their record is essentially the only way to regain the right to keep and bear arms, and that's not particularly easy. There is also a provision in state law allowing West Virginia courts to restore someone's right to keep and carry a gun so long as "such possession would not violate any federal law,” but as the Restoration of Rights Project points out, "this provision has been held by federal courts to be unavailable to offenders who remain barred by federal law from possessing firearms because their civil rights have not been 'substantially' restored."

A pardon is the exclusive way, along with expungement, that convicted individuals may regain their firearms rights, and apparently the only way they may avoid the constitutional bars to holding state office. The governor receives from 50-100 applications for pardon each year.  Pardons are rarely granted – only one pardon in the last 10 years, and only 121 since 1980.  Conditional pardons for prisoners (a sort of parole) are more frequent (200 in this same time period).

West Virginia law currently allows for the expungement of non-violent felony offenses, but petitioners must wait five years after the completion of their sentence and the payment of any restitution or fines. That window can be shortened to three years if the petitioner has taken part in a state-approved treatment or recovery and job program, but that's still a pretty long time to wait, especially when multiple courts across the country have already cast doubt on the constitutionality of prohibiting at least some non-violent felons from legally possessing a gun. 

The Fourth Circuit Court of Appeals, which has jurisdiction over West Virginia, is not one of those courts, unfortunately. In a case called U.S. v. Hunt that was decided in December, 2024, a three-judge panel on the appellate court ruled that the federal felon-in-possession statute is not only constitutional on its face, but is immune from as applied challenges on a case-by-case basis as well. In their opinion, "neither Bruen nor Rahimi abrogates this Court’s precedent foreclosing as-applied challenges to Section 922(g)(1) and those decisions thus remain binding," adding that even if the panel wasn't bound by Fourth Circuit precedent, "Section 922(g)(1) would pass constitutional muster."

Heller repeatedly described the core of the Second Amendment right as protecting “law-abiding” citizens. . In contrast, Heller made clear that restrictions on firearms possession by those who are not law-abiding—i.e., felons—are “presumptively lawful.” These limitations arise from the historical tradition. Taken together, Heller instructs that the “pre-existing right” “codified” in the Second Amendment protects firearms possession by the law-abiding, not by felons. 

Nothing in Bruen or Rahimi alters this reading of Heller. As for Bruen, our en bancCourt has already held that “[n]othing in Bruen abrogated Heller’s extensive discussion of the contours of the scope of the right enshrined in the Second Amendment.” The same is true of Rahimi, which pointedly repeated Heller’s statement tha t“prohibitions . . . on the possession of firearms by ‘felons and the mentally ill,’ are ‘presumptively lawful.’” We thus conclude that Section 922(g)(1) “regulates activity”—that is, the possession of firearms by felons—that “fall[s] outside the scope of the [Second Amendment] right as originally understood.”

The Third Circuit Court of Appeals is in conflict with the Fourth Circuit on this issue. In Range v. Garland, an en banc panel concluded that, at least in some circumstances, the blanket prohibition on firearm possession by those convicted of a felony or a misdemeanor punishable by more than one year in prison doesn't comport with the text of the Second Amendment or the national tradition of gun ownership. Specifically, the appellate panel held that Bryan Range, a Pennsylvania man convicted of falsifying his income on a food stamp application back in the 1990s, is a part of "the people" who possess the right to keep and bear arms despite being guilty of a crime punishable by more than a year behind bars. 

The Supreme Court referred to “law-abiding citizens” in Heller. In response to Justice Stevens’s dissent, which relied on United States v. Miller, the Court reasoned that “the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes.” In isolation, this language seems to support the Government’s argument. But Heller said more; it explained that “the people” as used throughout the Constitution “unambiguously refers to all members of the political community, not an unspecified subset.” So the Second Amendment right, Heller said, presumptively “belongs to all Americans.” Range cites these statements to argue that “law-abiding citizens” should not be read “as rejecting Heller’s interpretation of ‘the people.’” We agree with Range for four reasons.

Here are those four reasons: 

• The criminal histories of the plaintiffs in Heller, McDonald, and Bruen were not at issue in those cases. So their references to “law-abiding, responsible citizens” were dicta.
• other constitutional provisions refer to “the people.” For instance, “the people” are recognized as having rights to assemble peaceably, to petition the government for redress, and to be protected against unreasonable searches and seizures. Felons are not categorically barred from First Amendment or Fourth Amendment protection because of their status.
• All people have the right to keep and bear arms, though the legislature may constitutionally “strip certain groups of that right.” 
• Rahimi makes clear that citizens are not excluded from Second Amendment protections just because they are not “responsible.” 

At root, the Government’s claim that “felons are not among ‘the people’ protected by the Second Amendment,” devolves authority to legislators to decide whom to exclude from “the people.” We reject that approach because such “extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.” And that deference would contravene Heller’s reasoning that “the enshrinement of constitutional rights necessarily takes certain policy choices off the table.

In sum, we reject the Government’s contention that“felons are not among ‘the people’ protected by the Second Amendment.” Heller and its progeny lead us to conclude that Bryan Range remains among “the people” despite his 1995 false statement conviction.

There are a lot of prohibited persons cases kicking around the federal courts, and at some point SCOTUS is going to have to weigh in on the splits that we're seeing in the circuit courts. That doesn't mean that state legislators have to wait for the Supreme Court to decide whether Section 922(g)(1) is unconstitutional in some circumstances, and it's good to see these lawmakers take a proactive step towards strengthening our Second Amendment rights in the interim. 

Of course, not every bill that gets introduced becomes law, and HB 2618 could very well face opposition even within the Republican supermajority. If West Virginia 2A advocates want to see this change enacted they're going to have to do some work to get it to Gov. Patrick Morrisey, and though Morrisey was a champion of the right to keep and bear arms while serving as West Virginia Attorney General, he too might need some encouragement to make this substantial change to state law.