Nevada Firearm Laws
Historical
Background
Firearms
are regulated in Nevada
by both state and federal statutes and their respective constitutions. The right to keep and bear arms was
established in the Bill of Rights within the Second Amendment[i]. Anti-federalists were opposed to the original
federal constitution’s ratification because they thought it gave too much power
to the government. A compromise was
reached by adding Amendments to the original draft which established certain
individual freedoms, limited certain government powers, and gave additional
powers to the states and to the public.
The successfully ratified Amendments, including the Second, were adopted
on March 1, 1792.[ii]
The meaning
of this right “to keep and bear arms” has been hotly debated since its
inception. By way of background, in United States v. Cruikshank Et Al,
92 U.S.
542, 553, 23 L.Ed. 588 (1875), the court interpreted the Second Amendment as
not protecting an individual right to bear arms under federal law and left regulation
of any individual’s use and possession of firearms to the states. In United
States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed.
1206 (1939), the court addressed the federal indictment of two men for
transporting a shotgun in violation of the National Firearms Act of 1934. The court reversed the District Court’s
quashing of the indictment and held that the Second Amendment limited the
individual right to bear arms to weapons commonly used by militia as defined by
various state laws, which apparently did not include “a double barrel 12-gauge
Stevens shotgun having a barrel less than 18 inches in length.”
However, in
the federal system, the individual right to keep and bear arms was solidified
recently in Dist. of Columbia v. Heller, 554 U.S.
570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). In Heller, the court dealt
with the District of Columbia’s
ban on the possession of an unregistered firearm and the prohibition against
registration of any handgun. In
addition, D. C. residents were required to keep all lawfully possessed firearms
unloaded and disassembled or bound by a trigger lock. The court found that the D.C. ban essentially
forced residents to keep their arms in an unusable condition for purposes of
self-defense and completely eliminated the handgun, which the court determined
was the traditional firearm used for personal self-defense. The court held that the District of Columbia’s ban was
unconstitutional because the Second Amendment protects an individual’s 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. Two years later, the court applied the Heller
holding to the states in McDonald v. City of Chicago,
554 U.S. 570, 130 S. Ct. 3020, 177 L.Ed.2d 894 (2010), where the court held
that self-defense is a basic individual right and therefore, the Second
Amendment applied to the states through the due process clause of the
Fourteenth Amendment.
In Nevada, the right to keep and bear arms is
found in the Nevada Constitution at Art. I, Sec. 11 and states:
Every
citizen has the right to keep and bear arms for security and defense, for lawful hunting and recreational use and
for other lawful purposes.
As
can be seen, in Nevada,
there is no equivocation concerning the individual right to keep and bear arms
and no confusion that the right is separate and distinct from those of any
militia.
Gun Regulation In Nevada
In
1989, the Nevada
legislature preempted local jurisdictions from making firearm regulations[iii]. The only limited exception is for cities and
towns within counties of 700,000 or more in population. As a result of state preemption, there are a
limited number of regulations affecting firearms. There is no permit required to purchase
a rifle, shotgun, or handgun. Excepting
certain cities in Clark
County, there is no
registration of an individual’s rifle, shotgun or handgun. There is no licensing of owners of rifles,
shotguns or handguns. There is no permit
required to carry a rifle, shogun or handgun unless such firearm is concealed[iv]
on the person[v]. It is unlawful to have a rifle or shotgun
loaded with a round in the firing chamber within your vehicle.[vi] There is no prohibition for having a loaded
handgun in a vehicle. There are
regulations with regard to use and possession of a firearm by children under
the age of 18.[vii] Even the Emergency Powers of the state are
limited as to confiscation or further restricting an individual’s possession or
use of a firearm.[viii]
Carrying a
concealed firearm in Nevada
is regulated. Nevada is a “shall issue”
state making it mandatory for the county sheriff to issue a permit to carry a
concealed firearm if the applicant meets the requirements sit forth in NRS
202.3657(3) and is not disqualified by the events set forth in Section 4 or the
information received pursuant to Sections 5 or 6. The Attorney General has opined that carrying
a concealed firearm means carrying it on the person or in a container held by
the person.[ix] Carrying a concealed firearm without a permit
is a felony.[x]
With
regard to the courts, the Nevada Supreme Court has had some affect on firearm’s
law and regulation in Nevada. In Harris
v. State, 83 Nev. 404, 406, 432 P.2d 929, 930 (1967), the
court adopted the holding in Cruikshank, in that, (1) the Second Amendment only applies to the
federal government and that the states are free to regulate firearms
themselves; and (2) adopted the holding in Miller, that ‘[t]he right to
bear arms does not apply to private citizens as an individual right”. The Harris court went on to hold that
absent federal “restraints authority of the states to regulate weapons comes
from their police powers.” However,
years later, in Pohlabel v. State, 128 Nev. Adv. Op. 1, 268 P.3d 1264 (2012), the
court discussed both Heller and McDonald and adopted their
holdings that (1) the Second Amendment provides an individual right to bear
arms for self-defense but that right was only for law abiding citizens and not
felons and (2) that the Second Amendment’s right to bear arms applies to Nevada.
Use Of A Firearm
In Self-Defense
The fundamental
basis for an individual’s right to keep and bear arms, as expressed in Heller
and applied to the states in McDonald, is that an individual has a basic
right to self-defense. In Nevada, an individual
has the right to carry a firearm whether it is concealed or carried openly. A citizen may defend themselves or others
with use of a firearm; however, the Nevada Supreme Court has established
parameters for that use.
The seminal Nevada
case on the theory of self-defense is Runion v. State, 116 Nev. 1041, 13 P.3d 52
(2000). In Runion, the court
drafted a stock self-defense instruction which includes all aspects of
self-defense in Nevada
and should be used but tailored to the facts and circumstances of each case in
which the defense theory is self-defense.
The Runion court took the
then current Nevada
self-defense statutory framework and interpreted those statutes consistent with
the common law. The court reiterated
that not only is the theory supported by actual danger but also by apparent
danger as well. The court stated that apparent
danger is the appearance of imminent danger and by defining it so; a person who
reasonably believes they are facing bodily harm may use preemptive action. They do not have to retreat and they do not
have to wait to be attacked, as long as they act upon that honest belief and
fear, they are acting in self-defense.
Although
not a definitive treatise on Nevada
firearm laws, hopefully this article will give you a starting point to answer
client questions. For more hands on
instruction on gun laws in Nevada,
I suggest taking one of the approved courses on firearm safety as required as
part of an application for a concealed carry permit or the hunter education
course required by the Nevada Department of Wildlife prior to issuing a hunting
license.
[i] “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.”
[ii] Introduction by Roger A. Bruns to A More Perfect Union : The Creation of the United States
Constitution. Washington, DC : Published for the National Archives and
Records Administration by the National Archives Trust Fund Board, 1986. 33 p., available
at http://www.archives.gov/exhibits/charters/constitution_history.html.
[iii] NRS
244.364 (County); NRS 268.418 (Cities and Towns); NRS 269.222 (Unincorporated
Towns).
[iv] NRS
202.3653 – 202.369.
[v] State
law does not prohibit the open carry of a firearm.
[ix] Nev. Att’y Gen. Op.
No. 93-14.