Dennis DiBenedetto, Esq.
John
H. Treadway, Jr., Esq.
Prosecuting Attorney of Grant County Judy & Judy
Attorneys at Law
Petersburg, West Virginia
Lary
D. Garrett, Esq.
Attorney for the Appellant
Garrett & Garrett
Attorneys at Law
Moorefield,
West Virginia
Attorneys
for the Appellee
Fred J. Giggenbach, Jr., Esq.
Drug and Violent Crime Assistant Prosecutor
West Virginia Prosecuting Attorneys Institute
South Charleston, West Virginia
Attorney for Amicus Curiae,
West Virginia Prosecuting Attorneys Institute
JUSTICE DAVIS delivered the Opinion of the Court.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
2. “Where the language
of a statute is clear and without ambiguity the plain meaning is to be accepted
without resorting to the rules of interpretation.” Syllabus point 2, State
v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).
3. The plain language of
W. Va. Code § 61-7-7(b) (2000) (Repl. Vol. 2000) prohibits
any person who has been convicted of a felony sexual offense from possessing
a firearm or petitioning the circuit court of the county in which he/she
resides for the restoration of his/her firearm rights.
4. “In considering
the constitutionality of a legislative enactment, courts must exercise due
restraint, in recognition of the principle of the separation of powers in
government among the judicial, legislative and executive branches. Every
reasonable construction must be resorted to by the courts in order to sustain
constitutionality, and any reasonable doubt must be resolved in favor of
the constitutionality of the legislative enactment in question. Courts are
not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are
almost plenary. In considering the constitutionality of an act of the legislature,
the negation of legislative power must appear beyond reasonable doubt.” Syllabus
point 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va.
740, 143 S.E.2d 351 (1965).
5. “The West Virginia
legislature may, through the valid exercise of its police power, reasonably
regulate the right of a person to keep and bear arms in order to promote
the health, safety and welfare of all citizens of this State, provided that
the restrictions or regulations imposed do not frustrate the constitutional
freedoms guaranteed by article III, section 22 of the West Virginia Constitution,
known as the 'Right to Keep and Bear Arms Amendment.'” Syllabus point
4, State ex rel. City of Princeton v. Buckner, 180 W. Va. 457,
377 S.E.2d 139 (1988).
Davis, Justice:
The appellant herein and respondent below, the State
of West Virginia (hereinafter referred to as “the State”), appeals
from an order entered January 13, 2003, by the Circuit Court of Grant County.
By that order, the circuit court ruled that the appellee herein and petitioner
below, Tommy A. Rohrbaugh (hereinafter referred to as “Mr. Rohrbaugh”),
was eligible to have his right to possess firearms restored pursuant to W. Va.
Code § 61-7-7. On appeal to this Court, the State argues that the circuit
court erred by restoring Mr. Rohrbaugh's firearm rights. Upon a review of the
parties' arguments, the pertinent authorities, and the record designated for
appellate consideration, we conclude that the circuit court erred by ruling that
Mr. Rohrbaugh was entitled to the reinstatement of his right to possess firearms
under W. Va. Code § 61-7-7. Accordingly, we reverse the January
13, 2003, order of the Grant County Circuit Court.
Thereafter, on February 7, 2001, Mr. Rohrbaugh
filed a petition in the Circuit Court of Grant County seeking restoration
of certain civil rights which had been forfeited as a result of his aforementioned
felony conviction, including his right to possess firearms. The State objected
to the restoration of Mr. Rohrbaugh's right to possess firearms, arguing
that, pursuant to the express language of W. Va. Code § 61-7-7(c)
(2000) (Repl. Vol. 2000), (See
footnote 3) Mr. Rohrbaugh's firearms right could not be
restored because such restoration would violate federal law. The State additionally
argued that, under W. Va. Code § 61-7-7(b), (See
footnote 4) Mr. Rohrbaugh could not request the restoration of his right to possess firearms
provided by W. Va. Code § 61-7-7(c) because his prior conviction
of a felony sexual offense expressly foreclosed the restoration of his firearms
rights. Notwithstanding the State's objections to his petition, Mr. Rohrbaugh
presented evidence to establish that he is “competent and capable of
exercising the responsibility concomitant with the possession of a firearm.” W. Va.
Code § 61-7-7(c). By order entered January 13, 2003, the circuit
court determined that Mr. Rohrbaugh was entitled to the restoration of his
firearm rights pursuant to W. Va. Code § 61- 7-7. (See
footnote 5) From this ruling of the circuit court, the
State now appeals to this Court.
[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. pt. 2, Walker v. West Virginia Ethics Comm'n, 201 W. Va. 108,
492 S.E.2d 167 (1997). Accord Tennant v. Marion Health Care Found.,
Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 381 (1995).
On the more narrow issue of the circuit court's
interpretation and application of W. Va. Code § 61-7-7, we
apply a de novo standard of review: “[w]here the issue on an
appeal from the circuit court is clearly a question of law or involving an
interpretation of a statute, we apply a de novo standard of review.” Syl.
pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
415 (1995). Accord Syl. pt. 1, Appalachian Power Co. v. State Tax
Dep't of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting
a statute or an administrative rule or regulation presents a purely legal
question subject to de novo
review.”).
Mindful of these standards of review, we now consider
the parties' arguments.
The quandary presented by this discrepancy is whether
the application of the law in effect at the time of Mr. Rohrbaugh's petition
for the restoration of his firearm rights, i.e., W. Va. Code § 61-7-7
(2000) (Repl. Vol. 2000), is constitutional or whether it violates the constitutional
prohibition on the passage of ex post facto laws. See U.S.
Const. art. I, § 9, ¶ 3 (“No Bill of Attainder or ex
post facto Law shall be passed.”); W. Va. Const. art. III, § 4,
in part (“No bill of attainder, ex post facto law, or law impairing
the obligation of a contract, shall be passed.”). In cases similar to
the case sub judice, we have considered whether a statute, which applies
to persons who have served their sentence for a criminal conviction but which
was enacted after said persons were convicted and sentenced, could nevertheless be applied to regulate their post-release conduct. See generally Haislop
v. Edgell, 215 W. Va. 88, 593 S.E.2d 839 (2003); Hensler v.
Cross, 210 W. Va. 530, 558 S.E.2d 330 (2001). We concluded that
the statutes in question, i.e., the Sex Offender Registration Act,
were not punitive in nature but rather regulatory statutes enacted within
the Legislature's exercise of its police power to protect this State's
citizenry and, as such, they could be applied to persons who were convicted
and sentenced before their enactment. See Syl. pt. 5, Hensler
v. Cross, 210 W. Va. 530, 558 S.E.2d 330 (“The Sex Offender
Registration Act, W. Va. Code §§ 15-12-1 to 10, is
a regulatory statute which does not violate the prohibition against ex
post facto laws.”). See also Syl. pt. 5, Haislop v.
Edgell, 215 W. Va. 88, 593 S.E.2d 839 (“The application of
W. Va. Code § 15-12-4 (2000), which requires life registration
for certain sexual offenders, or W. Va. Code § 15-12-5 (2001),
which allows for public dissemination of certain information about life
registrants, to individuals who were convicted before the Legislature added
these requirements to the Sex Offender Registration Act does not violate
the ex post facto clause of the West Virginia Constitution.”).
Likewise, the statute at issue herein, W. Va.
Code § 61-7-7 (2000) (Repl. Vol. 2000), is also a regulatory, rather
than a punitive, statute, the application of which does not violate the ex
post facto clauses of the West Virginia or United States Constitutions.
At the time of Mr. Rohrbaugh's sentencing upon his plea of guilty, the revocation
of his firearm rights was neither a part of the statutorily prescribed sentence
for the crimes of which he was convicted nor a condition of his sentence
imposed by the circuit court. Rather, the Legislature enacted, and amended, W. Va. Code § 61-7-7 as
a nonpunitive, regulatory statute within the exercise of its police power
to safeguard the citizens of this State. Because W. Va. Code § 61-7-7
(2000) (Repl. Vol. 2000) does not operate to increase the punishment for
Mr. Rohrbaugh's enumerated offenses, it does not violate the constitutional
prohibition on ex post facto laws.
Having resolved this discrepancy, we proceed next
to the merits of this case.
(a) Except as provided for in
this section, no person shall possess a firearm as such is defined in section
two [§ 61-7-2] of this article (See
footnote 9) who:
(1) Has been convicted in any
court of a crime punishable by imprisonment for a term exceeding one year;
(2) Is addicted to alcohol;
(3) Is an unlawful user of or
addicted to any controlled substance;
(4) Has been adjudicated as a
mental defective or who has been involuntarily committed to a mental institution;
(5) Being an alien is illegally
or unlawfully in the United States;
(6) Has been discharged from
the armed forces under dishonorable conditions;
(7) Is subject to a domestic
violence protective order that:
(A) Was issued after a hearing
of which such person received actual notice and at which such person had an opportunity
to participate;
(B) Restrains such person from
harassing, stalking or threatening an intimate partner of such person or child
of such intimate partner or person, or engaging in other conduct that would place
an intimate partner in reasonable fear of bodily injury to the partner or child;
and
(C)(i) Includes a finding that
such person represents a credible threat to the physical safety of such intimate
partner or child; or
(ii) By its terms explicitly
prohibits the use, attempted use or threatened use of physical force against
such intimate partner or child that would reasonably be expected to cause bodily
injury; or
(8) Has been convicted in any
court of a misdemeanor crime of domestic violence.
Any person who violates the provisions
of this subsection shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one thousand dollars
or confined in the county jail for not less than ninety days nor more than one
year, or both.
(b) Notwithstanding the provisions
of subsection (a) of this section, any person:
(1) Who has been convicted in
this state or any other jurisdiction of a felony crime of violence against the
person of another or of a felony sexual offense; or
(2) Who has been convicted in
this state or any other jurisdiction of a felony controlled substance offense
involving a schedule I controlled substance[] other than marijuana, a schedule
II or a schedule III controlled substance as such are defined in sections two
hundred four, two hundred five and two hundred six [§§ 60A-2-204,
60A-2-205 and 60A-2-206], article two, chapter sixty-a of this code and who possesses
a firearm as such is defined in section two [§ 61-7-2] of this article
shall be guilty of a felony and, upon conviction thereof, shall be confined in
a state correctional facility for not more than five years or fined not more
than five thousand dollars, or both. The provisions of subsection (c) of this
section shall not apply to persons convicted of offenses referred to in this subsection or to persons
convicted of a violation[] of this subsection.
(c) Any person prohibited from
possessing a firearm by the provisions of subsection (a) of this section may
petition the circuit court of the county in which he or she resides to regain
the ability to possess a firearm and 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, the court may enter an order allowing
the person to possess a firearm if such possession would not violate any federal
law.
(Footnote added). The portion of the statute applicable to the case sub
judice is subsection (b), which prohibits individuals who have been convicted
of “a felony sexual offense,” among other crimes, from possessing
a firearm or petitioning for the restoration of his/her firearms rights pursuant
to subsection (c). Before we may apply this language to resolve the parties'
arguments, however, we must first ascertain the legislative meaning of this
provision.
We long have held that “[t]he primary object
in construing a statute is to ascertain and give effect to the intent of
the Legislature.” Syl. pt. 1, Smith v. State Workmen's Comp. Comm'r,
159 W. Va. 108, 219 S.E.2d 361 (1975). Thus, “[w]e look first to
the statute's language. If the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.” Appalachian
Power Co. v. State Tax Dep't, 195 W. Va. at 587, 466 S.E.2d at 438.
In other words, “[w]here the language of a statute is clear and without
ambiguity the plain meaning is to be accepted without resorting to the rules
of interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va.
571, 165 S.E.2d 108 (1968). Accord Syl. pt. 2, Crockett v. Andrews,
153 W. Va. 714, 172 S.E.2d 384 (1970) (“Where the language of a statute is free from ambiguity,
its plain meaning is to be accepted and applied without resort to interpretation.”);
Syl. pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)
(“A statutory provision which is clear and unambiguous and plainly expresses
the legislative intent will not be interpreted by the courts but will be
given full force and effect.”). Hence, “[a] statute is open to
construction only where the language used requires interpretation because
of ambiguity which renders it susceptible of two or more constructions or
of such doubtful or obscure meaning that reasonable minds might be uncertain
or disagree as to its meaning.” Sizemore v. State Farm Gen. Ins.
Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal quotations
and citation omitted).
Applying these tenets to the statute in question,
W. Va. Code § 61-7-7, it is clear that the language employed
by the Legislature is not ambiguous and is capable of but one construction.
In short, the relevant portion of subsection (b) plainly states that those
persons who have been convicted of a felony sexual offense may neither legally
possess a firearm nor petition for the restoration of their firearm rights
pursuant to subsection (c). Accordingly, we hold that the plain language
of W. Va. Code § 61-7-7(b) (2000) (Repl. Vol. 2000) prohibits
any person who has been convicted of a felony sexual offense from possessing
a firearm or petitioning the circuit court of the county in which he/she
resides for the restoration of his/her firearm rights.
Turning now to the facts presently before us, the
individual who is requesting the restoration of his firearm rights herein, Mr. Rohrbaugh, has been convicted
of the felony offense of sexual assault in the third degree. (See
footnote 10) While we appreciate Mr. Rohrbaugh's candor
in suggesting that the misconduct forming the basis of his conviction is
not of such a violent or heinous nature as to warrant the permanent revocation
of his right to possess a firearm, particularly when his primary motivation
for his request is to permit him to hunt and participate in other similar
recreational activities, the Legislature simply has not made allowances for
the severity of the offense, the miscreant's likelihood to re-offend, or
any other mitigating factors or extenuating or aggravating circumstances.
Rather, the Legislature, in plain and indisputable language, has determined
that those persons who have been convicted of a felony sexual offense, any felony
sexual offense, for whatever reason, are forever barred from possessing a
firearm. Insofar as Mr. Rohrbaugh has been convicted of such a crime, we
find that the prohibitions of W. Va. Code § 61-7-7(b) apply
to preclude him from both possessing a firearm and petitioning for the restoration
of his firearm rights. Therefore, the circuit court's contrary ruling is
hereby reversed. (See
footnote 11)
Governing our decision of this issue are the constitutional
provisions guaranteeing individuals the right to bear arms. In this regard,
Article III, section 22 of the West Virginia Constitution provides that “[a]
person has the right to keep and bear arms for the defense of self, family,
home and state, and for lawful hunting and recreational use.” Likewise,
the Second Amendment of the United States Constitution states that “[a]
well regulated Militia being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed.” Despite
these direct pronouncements of an individual's right to keep and bear arms,
the Legislature has enacted W. Va. Code § 61-7-7, which places
restrictions on an individual's exercise of such right in certain, enumerated
circumstances. (See
footnote 12) Therefore, we must determine whether the promulgation
of these restrictions is a proper exercise of legislative authority.
As a general rule, we have recognized that, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 1, Foster v. Cooper, 155 W. Va. 619, 186 S.E.2d 837 (1972). Thus, when a statute is challenged as being unconstitutional, this Court typically accords great deference to the legislative process underlying its enactment in an effort to find constitutionality. See State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 883, 207 S.E.2d 113, 118 (1973) (“Acts of the Legislature are always presumed to be constitutional, and this Court will interpret legislation in any reasonable way which will sustain its constitutionality.”); Syl. pt. 3, Willis v. O'Brien, 151 W. Va. 628, 153 S.E.2d 178 (1967) (“When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment.”). More specifically,
[i]n considering the constitutionality of a legislative enactment, courts must exercise due restraint, in recognition of the principle of the separation of powers in government among the judicial, legislative and executive branches. Every reasonable construction must be resorted to by the courts in order to sustain constitutionality, and any reasonable doubt must be resolved in favor of the constitutionality of the legislative enactment in question. Courts are not concerned with questions relating to legislative policy. The general powers of the legislature, within constitutional limits, are almost plenary. In considering the constitutionality of an act of the legislature, the negation of legislative power must appear beyond reasonable doubt.
Syl. pt. 1, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965). Hence,
[c]ourts will never impute to the legislature intent to contravene the constitution of either the state or the United States, by construing a statute so as to make it unconstitutional, if such construction can be avoided, consistently with law, in giving effect to the statute, and this can always be done, if the purpose of the act is not beyond legislative power in whole or in part, and there is no language in it expressive of specific intent to violate the organic law.
Syl. pt. 29, Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129,
67 S.E. 613 (1910).
With respect to the narrow issue before us concerning an individual's constitutional right to keep and bear arms, we previously have held that the Legislature may enact laws limiting one's firearm rights in conjunction with its inherent police power.
The West Virginia legislature may, through the valid exercise of its police power, reasonably regulate the right of a person to keep and bear arms in order to promote the health, safety and welfare of all citizens of this State, provided that the restrictions or regulations imposed do not frustrate the constitutional freedoms guaranteed by article III, section 22 of the West Virginia Constitution, known as the “Right to Keep and Bear Arms Amendment.”
Syl. pt. 4, State ex rel. City of Princeton v. Buckner, 180 W. Va.
457, 377 S.E.2d 139 (1988). See also Syl. pt. 3, In re Application
of Dailey, 195 W. Va. 330, 465 S.E.2d 601 (1995) (“It is axiomatic
that the regulation and control of dangerous and deadly weapons is exclusively
within the police power of the State exercised through the Legislature and
not the Judiciary.”). Among the restrictions to an individual's firearm
rights we have upheld as being constitutionally within the Legislature's
police power are prohibitions on the vehicular transportation of a loaded firearm; (See
footnote 13) criminal penalties for the brandishment
of a firearm; (See
footnote 14) and misdemeanor charges for the negligent
shooting, wounding, or killing of another while hunting. (See
footnote 15) But see Buckner, 180 W. Va.
457, 377 S.E.2d 139 (finding W. Va. Code § 61-7-1 (1975)
(Repl. Vol. 1989), which required an individual to possess a license
to carry a dangerous or deadly firearm, to be an unconstitutional restriction
of right to bear arms). Moreover, we have also found the instant statute,
W. Va. Code § 61-7-7, to be constitutional in our recent
decision in Perito v. County of Brooke, 215 W. Va. 178, 597
S.E.2d 311 (2004). Reviewing the application of W. Va. Code § 61-7-7(c)
to persons who have received unconditional pardons for their convictions,
we concluded that “the Legislature's method of achieving th[e] goal
[of public safety] has been crafted narrowly so as not to offend the
Constitution.” Perito, 215 W. Va. at ___, 597 S.E.2d
at 316.
Applying these tenets to the matter at hand, we find that the Legislature did not violate the West Virginia or United States Constitutions by enacting the firearm restrictions contained in W. Va. Code § 61-7-7. The restrictions contained therein are a proper exercise of the Legislature's police power to protect the citizenry of this State and impose reasonable limitations on the right to keep and bear arms to achieve this end. Furthermore, while the application of W. Va. Code § 61-7-7, and specifically subsection (b) thereof, effectively precludes Mr. Rohrbaugh from exercising his constitutional right to bear arms, we repeatedly have recognized that “[t]he right to bear arms is not absolute.” Perito, 215 W. Va. at ___, 597 S.E.2d at 315. Accord Buckner, 180 W. Va. at 463, 377 S.E.2d at 145. Given that “'the prohibition against the possession or ownership of handguns by persons previously convicted of a felony or other specified crime is widely accepted,'” Perito, 215 W. Va. at ___, 597 S.E.2d at 316 (quoting Buckner, 180 W. Va. at 465, 377 S.E.2d at 147 (citations omitted)), we do not find that the restrictions contained in W. Va. Code § 61-7-7 limiting the firearm rights of such individuals to be unreasonable. While we appreciate Mr. Rohrbaugh's reiterations that allowances should be made for persons whose crimes were not inherently violent or who have not demonstrated a proclivity to re-offend, the Legislature has not made such allowances and has not demonstrated an intent to do so. Accordingly, we find W. Va. Code § 61-7-7 to be constitutional on its face and in its application to preclude Mr. Rohrbaugh from exercising his firearm rights or seeking their restoration. (See footnote 16)
Reversed.
(a) A person who by any
act or omission contributes to, encourages or tends to cause the delinquency
or neglect of any child, including, but not limited to, aiding or encouraging
any such child to habitually or continually refuse to respond, without just
cause, to the lawful supervision of such child's parents, guardian or custodian
or to be habitually absent from school without just cause, shall be guilty
of a misdemeanor, and, upon conviction thereof, shall be fined not less than
fifty nor more than five hundred dollars, or imprisoned in the county jail
for a period not exceeding one year, or both fined and imprisoned.
W. Va. Code § 49-7-7 (1990) (Repl. Vol. 2004). See supra note
1.
(c) Any person prohibited
from possessing a firearm by the provisions of subsection (a) of this section
may petition the circuit court of the county in which he or she resides to
regain the ability to possess a firearm and 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, the court
may enter an order allowing the person to possess a firearm if such possession
would not violate any federal law.
(Emphasis added). The Legislature amended W. Va. Code § 61-7-7
in 2004, but such amendments do not affect our decision of the instant proceeding. See W. Va.
Code § 61-7-7 (2004) (Supp. 2004).
(b) Notwithstanding the
provisions of subsection (a) of this section, any person:
(1) Who has been convicted in
this state or any other jurisdiction of a felony crime of violence against the
person of another or of a felony sexual offense; or
(2) Who has been convicted in
this state or any other jurisdiction of a felony controlled substance offense
involving a schedule I controlled substance[] other than marijuana, a schedule
II or a schedule III controlled substance as such are defined in sections two
hundred four, two hundred five and two hundred six [§§ 60A-2-204,
60A-2-205 and 60A-2-206], article two, chapter sixty-a of this code and who possesses
a firearm as such is defined in section two [§ 61-7-2] of this article
shall be guilty of a felony and, upon conviction thereof, shall be confined in
a state correctional facility for not more than five years or fined not more
than five thousand dollars, or both. The provisions of subsection (c) of this
section shall not apply to persons convicted of offenses referred to in this
subsection or to persons convicted of a violation[] of this subsection.
(Emphasis added). See supra note 3.
[n]otwithstanding any provision
of this code to the contrary, no person who: (1) Has been convicted of a
felony in this state or in any other jurisdiction; (2) has been discharged
under less than honorable conditions from the armed forces of the United
States; (3) has been adjudicated as a mental incompetent or has been committed
involuntarily to a mental institution; (4) is an alien illegally or unlawfully
in the United States; or (5) is addicted to alcohol, a controlled substance
or a drug, or is an unlawful user thereof shall have in his or her possession
any firearm or other deadly weapon: Provided, That any person prohibited
from possessing a firearm or other deadly weapon by the provisions of this
section may petition the circuit court of the county in which he or she resides
and if the court finds by clear and convincing evidence that such person
is competent and capable of exercising the responsibility concomitant with
the possession of a firearm or other deadly weapon the court may enter an
order allowing such person to possess such weapon if such would not violate
any federal statute.
Any person who violates the provisions
of this section shall be guilty of a misdemeanor, and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in the county jail for not less than ninety
days nor more than one year, or both.