Legal Clarity: Nevada Question No. 1 and the Second Amendment (opinion)
State Question No. 1 on the current Nevada election ballot asks whether federal background checks already required in the purchase of firearms at federally-licensed retail firearms dealers should also apply to a variety of other firearms sales and transfers such as those made at gun shows, over the internet and between strangers.
Question 1 includes numerous exemptions and exceptions that cover the most frequent innocent non-commercial transfer of firearms, so that loaning or transferring a firearm to an extended family member is exempt from background checks, as is loaning a firearm to a hunting partner during a hunt, or to a friend at a shooting range.
Opponents argue that Question 1 infringes on the Second Amendment and punishes law-abiding citizens. In my opinion, the Second Amendment right to keep and bear arms is not affected by Question 1. The Second Amendment provides: “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.”
If you ask 10 people what the Second Amendment means, you are likely to get ten different answers. There is only one interpretation of the Second Amendment that really matters, and that is the late Justice Antonin Scalia’s 2008 majority opinion in District of Columbia v. Heller, 128 S. Ct. 2783 (2008):
(1) It protects an individual right to possess a firearm unconnected with service in a militia, and to use that firearm for traditionally lawful purposes, such as self-defense within the home.
(2) It does not limit the right to keep and bear arms for militia purposes, but limits the type of weapon to which the right applies to those in common use for lawful purposes.
(3) It does not provide unlimited rights to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. Longstanding prohibitions on the possession of firearms by felons and the mentally ill, laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, and laws imposing conditions and qualifications on the commercial sale of arms remain valid.
Heller, a law enacted for Washington, D.C., restricted residents from owning handguns and required that all other firearms be kept unloaded and disassembled or trigger-locked. Heller ruled this invalid.
The Second Amendment, however, does not guaranty freedom from all regulation of firearms (nor is it a right as some believe to keep arms for an armed insurrection against democratically elected leaders).
In Heller, Justice Scalia — the court’s conservative lion for three decades — specifically ruled that laws imposing conditions and qualifications on the commercial sale of arms do not violate the Second Amendment.
For this reason, State Question 1, which includes many significant exemptions, does not infringe upon anyone’s constitutional rights and does not punish law-abiding citizens by extending background checks to non-retail sales and transfers of firearms.
Andrew Wolf is an attorney/partner with Incline Law Group LLP in Incline Village. He is a Nevada Sportsman and gun owner. Please send legal topics you would like addressed in future Legal Clarity columns, a monthly feature in the Bonanza, to firstname.lastname@example.org and visit us at inclinelaw.com.