West Virginia Senate Bill 1071, the Creating Public Defense and Provisioning Act, has dropped into the Second Amendment world like a thunderclap — and I think it actually works. Not as a workaround, not as a legal stunt, but as a straightforward application of what 18 U.S.C. § 922(o) has said all along. Let me break it down.
What the Hughes Amendment Actually Says
In 1986, Rep. William J. Hughes (D-N.J.) pushed through what became the Hughes Amendment, codified at 18 U.S.C. § 922(o) as part of the Firearm Owners’ Protection Act (FOPA), Pub. L. 99-308. The provision banned transfers and possession of machine guns manufactured after May 19, 1986 — but only for “any person.”
Here is the critical carve-out at § 922(o)(2)(A), and I want you to read it carefully:
This subsection does not apply with respect to — (A) 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.
That single sentence does a lot of work. A “transfer to” a state is lawful. A “transfer by” a state is equally lawful. West Virginia SB 1071 — drafted with Gun Owners of America’s help and introduced February 23, 2026 by Sen. Chris Rose (R-Monongalia) — is built on exactly this language.
The “Person” Problem the ATF Already Solved
There is a second, independent layer of legal support that most commentators miss. The Hughes Amendment prohibition applies to “any person.” But how does the National Firearms Act define “person”?
Under 27 C.F.R. § 479.11, “person” means “a partnership, company, association, trust, or corporation, including each responsible person associated with such an entity; an estate; or an individual.” State governments are not enumerated. Neither are federal agencies. The ATF embeds this same definition in ATF Form 5320.1 — the application to make and register an NFA firearm — and the form explicitly states it is not for government entities.
In other words, the prohibition that reads “it shall be unlawful for any person to transfer or possess a machine gun” does not cover the State of West Virginia by its plain terms. The state is not a “person” under the statute or the regulations.
That is not an argument I invented. It is what the text has said since 1986.
The Trump DOJ Already Put This in Writing
Here is where it gets really interesting. The Trump-Bondi Department of Justice made this precise argument in State of New Jersey v. Bondi, No. 1:25-cv-01807-PX (D. Md. 2025) — a case in which fifteen states and the District of Columbia sued to block the DOJ from returning forced reset triggers (FRTs) to their owners after the DOJ reversed the Biden-era classification of FRTs as machine guns.
In that filing, the DOJ wrote — and I am quoting directly:
Even if FRTs were machine guns, federal law expressly provides that the machine gun prohibition does not apply to any transfer to or by the United States or any department or agency thereof … This dooms all of plaintiffs’ claims.
The brief goes further, stating that the return policy “does not violate 922(o)” and that plaintiff states’ theory was “demonstrably false.” Now, that filing invoked the federal-government exemption rather than the state exemption, but both spring from the same statutory subsection — § 922(o)(2)(A). The DOJ’s own words confirm that government entities, state and federal alike, operate entirely outside the Hughes Amendment’s transfer prohibition.
The bricks get laid one by one. A DOJ brief filed in June 2025 in an FRT dispute is now foundational support for post-1986 machine gun transfers in West Virginia. That is how this works.
What WV SB 1071 Would Actually Create
The bill establishes the Office of Public Defense within the West Virginia State Police, headed by the Superintendent. That office would acquire post-1986 fully automatic machine guns — from manufacturers or, conceivably, from a state armory — and then sell them to qualified West Virginia residents. The bill specifies that all transferred machine guns “shall be deemed to be made by the state of West Virginia” and that transfers will be made “under the authority of the state of West Virginia,” citing § 922(o)(2)(A) directly. Sen. Rose and his co-sponsors know exactly what they are doing.
The Senate Judiciary Committee advanced SB 1071 by voice vote on March 2, 2026. Senate President Randy Smith subsequently blocked it from moving forward. That is a political problem, not a legal one — and political problems are solvable.
The Broader Case for Armed Citizens
My one suggestion for the sponsors: the public-safety argument deserves more emphasis. Law enforcement is stretched thin across this country. Cartels operating just across the border in Mexico have RPGs, grenades, and helicopters. The threats to American communities — cartels, domestic criminals, foreign bad actors — are not abstract. An armed citizenry capable of defending against all forms of tyranny is not a nostalgic founding-era concept; it is a present-day operational necessity. I would make that argument front and center, because I think it resonates with courts and with the public alike.
Set the constitutional validity of the Hughes Amendment aside for now — there are real questions there, and I have addressed them elsewhere. Even if you assume § 922(o) is perfectly constitutional, the text of the statute already authorizes what West Virginia is trying to do. The law is clear. The only remaining question is whether the political will exists to push it through.
We will keep watching.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.