If West Virginia is going to create an Office of Public Defense that will sell machine guns manufactured after 1986 to the general public, it's going to have to wait until at least 2027.
SB 1071, which would have created that office and a potential way to get around the federal Hughes Amendment's prohibition on post-86 machine gun possession by the general public, did pass out of the Senate Judiciary committee on Monday afternoon, but bill sponsor Sen. Chris Rose has told reporters that "time has run out" for the bill this year.
The bill already faced an uphill battle, up against a Wednesday deadline to move bills from one chamber to another — plus the bill had a second reference to another committee, finance.
When bills are passed out of committee, they also need to be received by the full chamber for further action. In this case, the bill was not received by the full Senate during a Monday evening floor session.
“At this point, theoretically, to get the bill out of the Senate in time you would have to suspend constitutional rules, which would take two-thirds of the Senate to do so. So I would say traditionally speaking this bill would be dead at this time,” Rose said following a floor session today [Tuesday].
Expect some fingerpointing over why the legislation wasn't received by the full Senate on Monday evening after it apparently passed out of the Judiciary committee via a voice vote.
The Senate Judiciary Committee’s Monday evening meeting, where the bill was discussed and seemingly advanced, ended in confusion — with Chairman Tom Willis calling for the committee to be at ease while he and some other members went into a back room for discussion.
Committee members who remained at the table noted that a quorum no longer seemed to be present and that, for the moment, no one was leading the meeting. One by one several members filed out. Adjournment occurred about 20 minutes later.
Willis said on Tuesday that the bill had been reported to the Senate and it was beyond his "knowledge or control" where the legislation was at the moment.
According to the website LegiScan, which is pretty good about keeping up with the current status of bills around the country, SB 1071 is still before the Judiciary committee and not awaiting a hearing in Senate Finance. Today is the deadline for bills to cross out of their house of origin, so even if the bill did move to Finance today it would have to get voted out and then receive a vote on the Senate floor in order to survive.
So what happened here? I don't have any inside knowledge, but my guess is that there wasn't enough support to bring the bill forward, but few Republican senators wanted to be on the record in opposition to the bill either. Letting the legislation die a quiet death in committee instead of allowing a recorded up-or-down vote on the Senate floor provides an out for lawmakers to claim they would have supported SB 1071, but gosh darn it the bill just ran out of time.
That's essentially the scenario laid out by Sen. Laura Wakim Chapman, who spoke on the chamber floor on Tuesday to condemn the bill's fate this session.
“I’m disappointed,” said Chapman, R-Ohio. “The bill is dead and it was killed without transparency and without consensus.
“The decision was made in the dark, despite the fact that this bill has overwhelming support by this body. This is exactly why the public doesn’t trust politicians.”
At this point, Rose said, supporters of the machine gun bill will likely have to wait until next year.
“As a Second Amendment absolutist, it’s very important to me to see that all of our constitutional rights — especially the Second Amendment — are restored as much as we can,” he said.
I don't know that SB 1071 did have overwhelming support from the full Senate, but if Chapman and other supporters are serious about pushing the legislation next year one step they should take is to ask for an advisory opinion from West Virginia Attorney General John B. McCuskey about whether or not the bill does comport with federal law.
Federal law generally makes it illegal to transfer any machine gun manufactured after 1986, but there is a carveout for "a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof".
SB 1071's language states:
(1) All transfers of Machineguns to Qualified Persons under this Act shall be deemed to have been made "by" the State of West Virginia, and such transfers are made "under the authority of" the State of West Virginia, for purposes of 18 U.S.C. § 922(o)(2)(A).
(2) Any transferee of a Machinegun under the provisions of this Act shall be deemed to possess a Machinegun that was transferred "by" the State, and which was transferred "under the authority of" the State of West Virginia, for purposes of 18 U.S.C. § 922(o)(2)(A).
The biggest legal question is whether the transferred machine gun would need to be possessed "under the authority" of the proposed Department of Public Safety, or whether the state's authority would end once the gun was transferred. If the possession must be under the authority of the state of West Virginia or the Department of Public Safety, does that open up the state or the department to any liablity if a transferred machine gun is used in a criminal or irresponsible manner?
The bill's sponsors and Gun Owners of America say "no," but a concurring opinion from the state AG would go a long way towards soothing concerns by lawmakers.
Another issue, and perhaps the biggest impediment to SB 1071's passage next session, is simply that most people aren't comfortable with the idea of machine guns being readily available to U.S. citizens. Changing those hearts and minds isn't just the work of lawmakers, but of Second Amendment advocates who support the idea. Moving the Overton Window on possession of fully automatic firearms won't be easy, but I think i's going to be necessary for bills like this to gain traction... even in 2A-friendly states like West Virginia.
