Having one’s firearm rights restored in West Virginia can be difficult. Like in many states, however, the application process is relatively simple. A person seeking firearm rights restoration files a written petition at his or her local county courthouse asking a judge to restore their firearm rights. Under West Virginia Code § 61-7-7(f), the petition can be granted if the
“… court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm … [and] if such possession would not violate any federal law.”
This may seem simple, but for rights restoration, this statutory provision creates several legal difficulties. First, the standard is high – clear and convincing. Second, by using this language, West Virginia has effectively adopted federal law when it comes to restoring firearm rights. There is similar language in West Virginia Code § 61-7-7(c). This means that, if you have no right to bear arms under federal law, you will be unable to restore your firearm rights in West Virginia.
Under federal law there are only three methods of obtaining firearm rights restoration:
(1) By showing that the underlying conviction has been set aside, vacated or expunged (or, in some cases, sealed)
(2) By showing receipt of a pardon (or something equivalent) or
(3) By showing that the person’s civil rights – the right to vote, hold public office and sit on a jury – have been fully restored
The third difficulty under West Virginia law is created by the fact that most felony convictions will preclude a person from ever sitting on a jury. This means that, in West Virginia, a convicted person’s civil rights cannot be “fully restored.” So, in effect, a felon seeking firearm rights restoration in West Virginia must obtain a pardon or have the underlying conviction set aside, vacated, expunged, or sealed. In many cases – particularly for felony and domestic violence convictions – these are difficult legal standards to meet.
For a better understanding, let’s look at the case of West Virginia v. Stewart, Case No. 12-0392 (W. Vir. Supreme Court 2013). In that case, in 2010, Lloyd Stewart filed a petition for restoration of his right to possess a firearm. The underlying conviction that restricted his firearm rights was a 1981 felony conviction for possession of marijuana with the intent to deliver. Stewart served his four-year probationary sentence, from which he was released in 1985. In the intervening years, Stewart had no other arrests or convictions.
In his petition, Stewart relied on the third method listed above. The other two methods were not available because Stewart did not receive a pardon and his 1981 conviction had not been expunged or sealed (although he was eligible for such).
A hearing was held at the trial level, but the judge denied the petition. In denying the petition, the court stated that “[f]ederal law prohibits a person convicted of a felony from possessing a firearm, unless all of the civil rights of that person have been restored.” The court found that Stewart’s civil rights had not been FULLY restored, because as a convicted felon, Stewart was barred from sitting on a jury under West Virginia law.
On appeal, the West Virginia Supreme Court agreed with the trial court’s opinion. The Supreme Court noted that three rights are central to the concept of “civil rights” – the right to vote, hold public office and sit on a jury. In West Virginia, a convicted felon automatically regains his or her right to vote after completion of the sentence and, likewise, most – but not all – convicted felons regain their right to run for most elective offices after completing their sentence. But such is not the case for the right to sit on a jury. Since Stewart had not regained his right to sit on a jury, he had not FULLY regained his civil rights. Thus, he did not meet one of the exceptions under federal law for firearm rights restoration. Thus, the Supreme Court held that Stewart could not have his West Virginia firearm rights restored and that the trial court had ruled correctly.
Find A Firearm Rights Attorney Today
If a conviction or something else in your past is inhibiting your ability to own and carry a firearm, you may benefit from the help of an experienced Second Amendment-focused attorney. FirearmRights.net can help you find attorneys in your area that can provide advice and legal counsel. This website has been developed by firearm rights attorneys with extensive experience in protecting Second Amendment rights. Our goal is to support the firearm community by restoring the rights of people who deserve them.
Click on the “Restore Your Rights” tab to be connected with a dedicated attorney in your area who can review the facts of your case and start the journey to reclaiming your second amendment rights.